Full Judgment Text
* HIGH COURT OF DELHI : NEW DELHI
+ CS (OS) No. 894/2001
Judgment reserved on: 17-01-2007
% Judgment delivered on: 18-01-2007
La Chemise Lacoste & another ..... Petitioners
Through: Mr. C. M. Lall with Ms. Shikha
Sachdev & Mr. Manish Dhir,
Advocates
versus
Crocodile Indl. Pte. Ltd. ..... Respondents
Through: Mr. Sandeep Kakra, Advocate
CORAM
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
VIPIN SANGHI, J.
Mr. Christian London, who is a French national is a witness
for the plaintiff. He has come to India specially to depose in the
matter. Vide order dated 8.1.2007 it was directed that the recording of
evidence be carried out on a day to day basis to accommodate the
foreign witness. The matter was fixed for cross-examination of the
CS (OS) No. 894/2001 Page No. 1 of 18
foreign witness on 16.1.2007 before the Joint Registrar.
When the matter came up before the Joint Registrar on
16.1.2007, even though the witness was present with the translator,
the defendant's counsel raised various objections and did not cross-
examine the said witness.
The Joint Registrar has placed the matter before the Court
to deal with the various objections raised by the defendants, which
have been elaborately recorded in the order dated 16.1.2007 passed
by the Joint Registrar.
The defendant firstly objected by stating that there were
two affidavits of the same witness, namely, Mr. Christian London, one
filed on 3.12.2005 and the second on 2.2.2006. During the course of
arguments, it was stated by learned counsel for the plaintiff that the
document that the defendant is claiming to be an affidavit of Mr.
Christian London filed on 2.2.2006 is in fact not an affidavit.
A bare perusal of the said document shows that it is merely a
certificate issued by Mr. Christian London. It does not even purport to
have been made and signed on solemn affirmation. To this, learned
counsel for the defendant countered by relying upon the index wherein
the document had been described as an affidavit of Mr. Christian
London. In my view, it is elementary that a statement, which is not
made on solemn affirmation and does not even purport to be as made
CS (OS) No. 894/2001 Page No. 2 of 18
on solemn affirmation, cannot be treated as an affidavit. Mere
description of the said document as an affidavit in the index does not
make the said document an affidavit. This objection of the defendant is
wholly frivolous and I reject the same.
The second objection raised by the defendant's counsel is
that the affidavit filed on 3.12.2005 is in the nature of a replication to
the written statement of the defendant. It is stated that despite
repeated opportunities and imposition of costs replication was not filed
by the plaintiff and right to file replication was closed by the Court vide
order dated 24.10.2003. Learned counsel for the defendant submitted
that the plaintiff could not file its replication in the garb of an affidavit
by way of evidence.
In my view this objection merely needs to be stated to be
rejected. The affidavit has been filed by the witness as his
examination-in-chief. It is for the witness to state, whatever he may
choose to state and depose in his affidavit by way of examination-in-
chief. It is not for the defendant to raise an objection that the affidavit
is in fact a replication. It is not for the defendant to advice as to what
the plaintiffs witness should state in his examination-in-chief. The
defendant cannot obstruct the trial by such means. It is for the
defendant to cross-examine the witness and if the deponent has in his
affidavit deposed beyond pleadings the defendant can certainly
CS (OS) No. 894/2001 Page No. 3 of 18
confront the witness with regard to that part of the deposition which is
beyond the pleadings of the plaintiff. It would be for the Court,
ultimately at the time of hearing of the suit to rule upon such
objections and to decide whether or not to disregard any part of the
deposition of the witness. However, that by itself cannot be a ground
for the defendant to object to the recording of evidence and for refusal
to proceed with the cross-examination of the witness. This objection of
the defendant is, therefore, rejected.
The next objection raised by the defendant was that
documents at Sl.Nos. 2,3,6,7,8,9 & 10 in the index dated 3.12.2005
were new documents, copies whereof had not been placed on record
earlier, nor any permission had been sought to file the originals of
these documents from the Court. Learned counsel for the defendant
submitted that the affidavit by way of evidence of the witness Mr.
Christian London filed on 3.12.2005, until tendered in evidence, need
not have been objected to by the defendant and that the occasion to
raise the objection as raised by the defendant on 16.1.2007, for the
first time arose on that date itself.
I find that the affidavit by way of evidence of Mr. Christian
London had been filed as early as on 3.12.2005. No objection to the
filing of additional documents by the plaintiff with the said affidavit was
raised by the defendant for all this time even though the defendant has
CS (OS) No. 894/2001 Page No. 4 of 18
been served a copy of this affidavit along with all the documents
attached to it on 3.12.2005 itself. The examination-in-chief by way of
an affidavit of Mr. Christian London was filed in compliance with Order
18 Rule 4 CPC, which states that in every case the examination-in-chief
of the witness shall be on affidavit and copies thereof shall be supplied
to opposite party.
The proviso to sub-rule 4 of Rule 4 states that, if any objection is
raised during the recording of evidence before the Commissioner, the
same shall be recorded by him and decided by the Court at the stage
of arguments.
Even before the affidavit is tendered by the witness during his
appearance for cross-examination before the Commissioner or Court, it
is open for the opposite party to raise its objections to the tendering of
fresh documents. The affidavit or the documents filed therewith
cannot be wholly ignored by the opposite party. The objection of the
kind sought to be raised by the defendant in this particular case could
well have been raised on the various dates of which the matter came
up after 3.12.2005. I may note that the plaintiff had moved an
application being IA no. 2342/2006 seeking exemption from
appearance of the deponent Mr. Christian London at the time of
marking the documents according to the deposition made by him in his
affidavit by way of evidence. That application was allowed by the Court
CS (OS) No. 894/2001 Page No. 5 of 18
on 27.2.2006. If the defendant had any objection to the production of
the said documents along with affidavit of Mr. Christian London, the
said objection could well have been taken and ought to have been
taken on the said date. In fact, it appears that the order dated
27.2.2006 was passed without any objection by the defendant, who
was represented through counsel on that date. I may also refer to the
order dated 11.10.2006 in the matter. On this date the second witness
of the plaintiff Mr. Anoop Singh was present for cross-examination
while Mr. London was not present. The matter was, however,
adjourned on the ground that the documents referred to at Sl. Nos. 1 to
17 of PW1 need to be tendered first and that PW1 i.e. Mr. Christian
London needed to be examined first. Though, it is not clear from the
order passed by the Joint Registrar on 11.10.2006 that any such
objection was raised by the defendant, it is argued by learned counsel
for the plaintiff that it was at the defendant's behest that the cross-
examination of the witness, who was present, namely, Mr.Anoop Singh
could not proceed. Even on that date the defendant did not raise any
objection to the filing of the fresh documents by Mr.Christian London
with his affidavit. On the contrary, the order shows that the production
of Mr. Christian London as the first witness to tender the documents
filed by him before examination of the other witness was ordered.
Even if the defendant had any valid objection to the
CS (OS) No. 894/2001 Page No. 6 of 18
production of the said documents with the affidavit of Mr.Christian
London, in terms of sub-rule 4 of Rule 4 of Order 18, the objection of
the defendant could have been recorded and the cross-examination of
the witness proceeded with. However, learned counsel for the
defendant chose not to proceed with the cross-examination of Mr.
Christian London, when the matter came up on 16.1.2007 before the
Joint Registrar.
In my view the conduct of the defendant in not raising any
objection to the filing of the aforesaid documents with the affidavit
filed on 3.12.2005, in the aforesaid facts and circumstances amounts
to a waiver by it of its objections. The defendant knew that the witness
was specially coming from France for the recording of his evidence. He
did not raise the objection when it could have been so raised earlier
and waited for the witness to arrive. The conduct of the defendant is
clearly designed to frustrate the progress of the trial and to
inconvenience the plaintiff's witness.
The fresh documents had been filed as early as on
3.12.2005 and the defendant has had notice of these documents since
then. These documents are (i) the Notarised Power of Attorney, (ii)
Certified copy of the plaintiffs copyright registration, (iii) Notarised
copies of world wide registration certificates (iv) certified copies of
court orders and (v) some literature/reports in respect of the plaintiffs
CS (OS) No. 894/2001 Page No. 7 of 18
copyright and trademark.
The documents at Sl.Nos. (i) to (iv) above are of the kind
which can be allowed to be produced since they are in the nature of
public documents. So far as documents at Sl.No. (v) above are
concerned, even they can be allowed to be produced at this stage. No
serious prejudice would be caused to the defendant by the production
of any of these documents. The defendant would have his right to
cross examine the witness and raise his objection to the admissibility
of these documents. In the interest of justice, I grant leave to the
plaintiff to produce the said documents subject to any objections with
regard to their admissibility, and the manner of proof of the contents of
the documents.
The next objection raised by the defendant was that various
documents sought to be placed on record are in foreign languages of
which no translation has been placed on record, in accordance with the
Delhi High Court Rules and Orders. Learned counsel for the defendant
referred to Rule 5 in Chapter 3 of Delhi High Court (Original) Rules,
1967 which inter alia states that no document in a language other than
English shall be received by the Registry unless it is accompanied by a
translation in English. It further states that a suit or other proceedings
will not be set down for hearing until all the documents filed on which
the parties intend to rely, are in English or have been translated into
CS (OS) No. 894/2001 Page No. 8 of 18
English.
Here again, I find that the said reason by itself is not good
enough for the defendant not to proceed with the cross-examination of
the witnesses. As noticed herein above, the defendant could well have
raised his objections to the said documents being proved on record and
all such objections would have to be dealt with by the court at the
stage of arguments. Learned counsel for the plaintiff submits that he
is aware of the fact that some of the documents are in foreign
languages and since translations have not been filed, they cannot be
legally proved. However, that by itself cannot be a ground for the
defendant not to proceed with the cross-examination of the witnesses.
I agree with the contention of the plaintiff that defendant could have
raised its objection before the Local Commissioner with regard to the
admissibility of the documents in other languages but could not have
refused to cross-examine the witnesses or to prevent the progress of
the cross-examination altogether.
The next ground taken by the defendant for not proceeding
with the cross-examination was that the affidavit of Mr. Christian
London filed on 03-12-2005 has not been legalized or aposilled and as
such it cannot be tendered in evidence. According to the defendant, it
is not an affidavit in the eyes of law. The argument of the defendant is
that the affidavit of Mr. Christian London ought to have been affirmed
CS (OS) No. 894/2001 Page No. 9 of 18
before a Diplomatic or Consular Officer in France in accordance with
Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act,
1948. He submits that the affidavit of Mr. Christian London appears to
have been merely notarized by a French Notary. However, there is no
certification by the Indian Consular or Diplomatic Officer of the fact
that the so called notary was, in fact, authorized to notarize the
affidavit of the witness.
He relied on AIR 1967 Calcutta 636 in Re. K.K. Ray (Private)
Ltd. In this case, the court was concerned with the two affidavits
sworn before a Notary Public of New York, USA. The notarial act of the
Notary had been certified by the Certify Country Clerk, a Clerk of the
Supreme Court, New York County which is a court of record by
affixation of its seal. Further, there was a certificate given by the
Consulate General of India, New York for legalizing the seal of the Clerk
of the County of New York. The court rejected the objections raised to
the affidavits in question. In the course of its judgment, the court
observed as follows :-
“(32) The Notary is now internationally known today
in the modern world of commerce, industry and
dealings between different nations and countries.
Reciprocity between different countries is its
essential basis. Without this reciprocity and mutual
respect the whole system and rationale of notarial
acts will break down, to the great detriment of
commercial transactions throughout the world and
their due administration by courts of law in different
CS (OS) No. 894/2001 Page No. 10 of 18
countries and will jeopardised international
commerce, law merchant and administration of
justice. It is precisely to provide facilities of
receiving affidavits, documents, protests of bills of
exchange and other commercial papers that this
institution of Notary Public grew up to fulfil a very
practical need. Unnecessary or illogical
impediments should not be put on his way. No
doubt that does not mean that law of the Courts
should not ensure reasonable authenticity and
dependability of notarial acts.”
The defendant's counsel also drew my attention to the
“Convention Abolishing The Requirement Of Legislation For Foreign
Public Documents”, to which France is a Member State while India is
also a non-Member signatory State. Article 1 of this Convention states
:-
“Article 1
The present Convention shall apply to public
documents which have been executed in the
territory of one Contracting State and which have to
be produced in the territory of another Contracting
State.
For the purposes of the present Convention, the
following are deemed to the public documents:
a) tribunals of the State, including those emanating
from a public prosecutor, a clerk of a court or a
process-server;
b) ...............................;
c) notarial acts; .......................”
Under Article 2, the contracting States are obligated to
exempt from or legalization the documents to which the said
Convention applies and which have to be produced in its territory.
CS (OS) No. 894/2001 Page No. 11 of 18
Legalization means only a formality by which the Diplomatic or
Consular agents of the country in which the document has to be
produced, certify the authenticity of the signature, capacity in which
the person signing the document has acted and the identity of the seal
or stamp which it bears.
Under Article 3, it is stated :-
“Article 3
The only formality that may be required in order to
certify the authenticity of the signature, the capacity
in which the person signing the document has acted
and, where appropriate, the identity of the seal or
stamp which it bears, is the addition of the certificate
described in Article 4, issued by the competent
authority of the state from which the document
emanates.
However, the formality mentioned in the preceding
paragraph cannot be required when either the laws,
regulations, or practice in force in the State where
the document is produced or an agreement between
two or more Contracting States have abolished or
simplified it, or exempt the document itself from
legalisation.”
Article 4 reads :-
“The certificate referred to in the first paragraph of
Article 3 shall be placed on the document itself or on
an “allonge”, it shall be in the form of the model
annexed to the present Convention.
It may, however, be drawn up in the official language
of the authority which issues it. The standard terms
appearing therein may be in a second language also.
The title “Apostille (Convention de La Haye du 5
octobre 1961)” shall be in the French language.”
The submission of the defendant based on Section 3 of the
CS (OS) No. 894/2001 Page No. 12 of 18
Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, appears
to be wholly misplaced. By the said provision, the Diplomatic and
Consular Officers have been empowered to administer oath and take
any affidavit and also to do any notarial act which a Notary Public may
do in the State where the Diplomatic or Consular Officer is functioning.
The documents notarized by such officers would be considered as
validly notarized in India. It does not say that unless a Diplomatic or
Consular Officer in the foreign country where the oath is administered
or affidavit is taken, does the notarial act, the affidavit or the
statement on oath cannot be used in India, though it may have been
notarized by a Notary functioning in that foreign country. The notarial
act of the Diplomatic or Consular Officer of India in the foreign country
is made as effectual as the notarial act of any lawful authority in that
particular country/State. Merely because the affidavit of Mr. Christian
London is not notarized by the Diplomatic or Consular Officer of India in
France, that by itself cannot mean that the said affidavit is not
legalized or aposilled. Even the judgment relied upon by the defendant
in AIR 1967 Calcutta 636 does not advance the case of the
defendant. On the contrary, the principle stated in the said case
completely supports the plaintiff. It is clear that the defendant is
seeking to put unnecessary and illogical impediment in the production
of the affidavit. There is no ground stated by the defendant to impinge
CS (OS) No. 894/2001 Page No. 13 of 18
upon the authenticity or the dependability of the notarial act done by
the Notary Public while notarizing the affidavit of Mr. Christian London.
Even the Convention relied upon by the plaintiff does not support the
arguments of the defendant. As noticed above, notarial acts are
deemed to be public documents by virtue of Article 1. Section 3 of the
Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 is, in fact,
in conformity with Article 2 since it does not purport to limit the
process of legalization merely to the Diplomatic or Consular agents of
India who are working in foreign countries. No other legal provision
has been cited by either party which requires the process of
legalization of documents to be done only by the Diplomatic and
Consular Officers of India who are working in foreign countries. Article
3 also is of no avail to the defendant and fully supports the case of the
plaintiff. Firstly, the said Article says that the only formality that
'' may'' be required in order to certify the authenticity of the signature,
the capacity in which the person signing the document has acted and
the identity of the seal or stamp which it bears, is the addition of the
certificate described in Article 4. In India, there is no formality
prescribed with regard to the certification of authenticity of signature
of the Notary, the capacity in which the Notary signs the document, or
the identity of the seal or stamp which he affixes on the document. By
virtue of later part of Rule 3, such condition cannot be required for
CS (OS) No. 894/2001 Page No. 14 of 18
purpose of legalization of documents notarized in foreign countries.
On the other hand, learned counsel for the plaintiff has relied
nd
upon AIR 1980 Allahabad 369, Abdul Jabbar & others Vs. 2
Additional District Judge, Orai & others. In this case, the court
after following the cited decisions, held that Section 85 of the Indian
Evidence Act (which raises a presumption in respect of a Power of
Attorney having been executed before an authenticated Notary Public)
applies equally to the documents authenticated by Notaries Public of
other countries. The court held - “ In my opinion, documents which
purport to be executed before or authenticated by Notaries Public,
bearing proper seals, of other countries ought to be presumed to have
been duly notarized within the meaning of Section 85......”
The plaintiff also relied upon AIR 1976 Delhi 263 National
Grindlays Bank Ltd. Vs. M/s. World Science News & others . This
court in para 11 inter alia held as follows :-
''.......... the purpose of Section 57 and 85 is to cut
down recording of evidence. For such matters, like
the due execution of a power of attorney in the
present day of international commerce, there is no
reason to limit the words “Notary Public” in Section
85 or Section 57 to Notaries appointed in India. The
fact that notaries public of foreign countries have
been recognized as proper authorities for due
execution and authentication for purpose of Section
85 of the Evidence Act is illustrated by the Supreme
Court in case Jugraj Singh V. Jaswant Singh, (1971)
1 SCR 38 = (AIR 1971 SC 761). In this case the
Supreme Court held that a power of attorney
CS (OS) No. 894/2001 Page No. 15 of 18
executed and authenticated before a notary public
of California satisfied the test of Section 85 of the
Evidence Act and Section 33 of the Indian
Registration Act. If the interpretation of notary
public is limited to notaries public appointed in this
country only, it will become impossible to carry on
commerce with foreign countries. Surely, Section
57 of the Indian Evidence Act enjoins upon the
Courts to take judicial notice of seals of Notary
Public. Such judicial notice cannot be limited to
Notaries appointed in India only..........”
In 37(1989) DLT 88 Rajesh Wadhwa Vs. Dr. (Mrs.) Sushma
Govind , this court has held that even though there might not be
reciprocity between India and another country (in that case, USA) u/s
14 of the Notaries Act, 1952, the notarial acts of the Notaries in the
foreign country could be given legal recognition by the courts and
authorities in India. The Notification u/s 14 of the Notaries Act was
held to be non-mandatory.
Learned counsel for the plaintiff also submitted, and I think
rightly so, that even if there was a doubt about the affidavit of the
witness not being duly attested as being made on solemn affirmation,
since the witness was personally present to dispose on oath, he could
well have been put under oath and could have made a statement that
the affidavit filed on 3.12.2005 was a statement made on oath.
In the light of the aforesaid discussion, in my view the objections
raised by the defendant are liable to be rejected.
On the other hand, the defendant has succeeded in delaying the
CS (OS) No. 894/2001 Page No. 16 of 18
progress of the trial and cross-examination of a foreign witness who
has been available since 16-01-2007. His cross-examination could not
th th
take place on 16 and 17 January 2007 on account of the unjustified
and wholly unacceptable conduct of the defendant. All the objections
raised by the defendant were of the nature which could have been
raised during the course of cross-examination of the witness and the
cross-examination ought not to have been refused by the defendant.
In my view, the defendant by its conduct, has disentitled itself to its
right of cross-examining the witness. The defendant must be taken to
have acted at its own peril. Due to the conduct of the defendant, this
court has had to put aside the other urgent and pressing matters since
a foreign witness is waiting to be cross-examined before he leaves
India.
I, therefore, allow as the last and the only opportunity to
defendant to cross-examine the aforesaid plaintiff's witness today itself
at 2 P.M. before the Joint Registrar/Local Commissioner subject to the
payment of Rs.50,000/- as costs. The Joint Registrar may conduct the
cross-examination today itself and if necessary, tomorrow as well. The
matter be placed before the Joint Registrar today at 2 P.M. for
recording of evidence.
CS (OS) No. 894/2001 Page No. 17 of 18
January 18, 2007 VIPIN SANGHI, J
mw/spg
CS (OS) No. 894/2001 Page No. 18 of 18
+ CS (OS) No. 894/2001
Judgment reserved on: 17-01-2007
% Judgment delivered on: 18-01-2007
La Chemise Lacoste & another ..... Petitioners
Through: Mr. C. M. Lall with Ms. Shikha
Sachdev & Mr. Manish Dhir,
Advocates
versus
Crocodile Indl. Pte. Ltd. ..... Respondents
Through: Mr. Sandeep Kakra, Advocate
CORAM
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
VIPIN SANGHI, J.
Mr. Christian London, who is a French national is a witness
for the plaintiff. He has come to India specially to depose in the
matter. Vide order dated 8.1.2007 it was directed that the recording of
evidence be carried out on a day to day basis to accommodate the
foreign witness. The matter was fixed for cross-examination of the
CS (OS) No. 894/2001 Page No. 1 of 18
foreign witness on 16.1.2007 before the Joint Registrar.
When the matter came up before the Joint Registrar on
16.1.2007, even though the witness was present with the translator,
the defendant's counsel raised various objections and did not cross-
examine the said witness.
The Joint Registrar has placed the matter before the Court
to deal with the various objections raised by the defendants, which
have been elaborately recorded in the order dated 16.1.2007 passed
by the Joint Registrar.
The defendant firstly objected by stating that there were
two affidavits of the same witness, namely, Mr. Christian London, one
filed on 3.12.2005 and the second on 2.2.2006. During the course of
arguments, it was stated by learned counsel for the plaintiff that the
document that the defendant is claiming to be an affidavit of Mr.
Christian London filed on 2.2.2006 is in fact not an affidavit.
A bare perusal of the said document shows that it is merely a
certificate issued by Mr. Christian London. It does not even purport to
have been made and signed on solemn affirmation. To this, learned
counsel for the defendant countered by relying upon the index wherein
the document had been described as an affidavit of Mr. Christian
London. In my view, it is elementary that a statement, which is not
made on solemn affirmation and does not even purport to be as made
CS (OS) No. 894/2001 Page No. 2 of 18
on solemn affirmation, cannot be treated as an affidavit. Mere
description of the said document as an affidavit in the index does not
make the said document an affidavit. This objection of the defendant is
wholly frivolous and I reject the same.
The second objection raised by the defendant's counsel is
that the affidavit filed on 3.12.2005 is in the nature of a replication to
the written statement of the defendant. It is stated that despite
repeated opportunities and imposition of costs replication was not filed
by the plaintiff and right to file replication was closed by the Court vide
order dated 24.10.2003. Learned counsel for the defendant submitted
that the plaintiff could not file its replication in the garb of an affidavit
by way of evidence.
In my view this objection merely needs to be stated to be
rejected. The affidavit has been filed by the witness as his
examination-in-chief. It is for the witness to state, whatever he may
choose to state and depose in his affidavit by way of examination-in-
chief. It is not for the defendant to raise an objection that the affidavit
is in fact a replication. It is not for the defendant to advice as to what
the plaintiffs witness should state in his examination-in-chief. The
defendant cannot obstruct the trial by such means. It is for the
defendant to cross-examine the witness and if the deponent has in his
affidavit deposed beyond pleadings the defendant can certainly
CS (OS) No. 894/2001 Page No. 3 of 18
confront the witness with regard to that part of the deposition which is
beyond the pleadings of the plaintiff. It would be for the Court,
ultimately at the time of hearing of the suit to rule upon such
objections and to decide whether or not to disregard any part of the
deposition of the witness. However, that by itself cannot be a ground
for the defendant to object to the recording of evidence and for refusal
to proceed with the cross-examination of the witness. This objection of
the defendant is, therefore, rejected.
The next objection raised by the defendant was that
documents at Sl.Nos. 2,3,6,7,8,9 & 10 in the index dated 3.12.2005
were new documents, copies whereof had not been placed on record
earlier, nor any permission had been sought to file the originals of
these documents from the Court. Learned counsel for the defendant
submitted that the affidavit by way of evidence of the witness Mr.
Christian London filed on 3.12.2005, until tendered in evidence, need
not have been objected to by the defendant and that the occasion to
raise the objection as raised by the defendant on 16.1.2007, for the
first time arose on that date itself.
I find that the affidavit by way of evidence of Mr. Christian
London had been filed as early as on 3.12.2005. No objection to the
filing of additional documents by the plaintiff with the said affidavit was
raised by the defendant for all this time even though the defendant has
CS (OS) No. 894/2001 Page No. 4 of 18
been served a copy of this affidavit along with all the documents
attached to it on 3.12.2005 itself. The examination-in-chief by way of
an affidavit of Mr. Christian London was filed in compliance with Order
18 Rule 4 CPC, which states that in every case the examination-in-chief
of the witness shall be on affidavit and copies thereof shall be supplied
to opposite party.
The proviso to sub-rule 4 of Rule 4 states that, if any objection is
raised during the recording of evidence before the Commissioner, the
same shall be recorded by him and decided by the Court at the stage
of arguments.
Even before the affidavit is tendered by the witness during his
appearance for cross-examination before the Commissioner or Court, it
is open for the opposite party to raise its objections to the tendering of
fresh documents. The affidavit or the documents filed therewith
cannot be wholly ignored by the opposite party. The objection of the
kind sought to be raised by the defendant in this particular case could
well have been raised on the various dates of which the matter came
up after 3.12.2005. I may note that the plaintiff had moved an
application being IA no. 2342/2006 seeking exemption from
appearance of the deponent Mr. Christian London at the time of
marking the documents according to the deposition made by him in his
affidavit by way of evidence. That application was allowed by the Court
CS (OS) No. 894/2001 Page No. 5 of 18
on 27.2.2006. If the defendant had any objection to the production of
the said documents along with affidavit of Mr. Christian London, the
said objection could well have been taken and ought to have been
taken on the said date. In fact, it appears that the order dated
27.2.2006 was passed without any objection by the defendant, who
was represented through counsel on that date. I may also refer to the
order dated 11.10.2006 in the matter. On this date the second witness
of the plaintiff Mr. Anoop Singh was present for cross-examination
while Mr. London was not present. The matter was, however,
adjourned on the ground that the documents referred to at Sl. Nos. 1 to
17 of PW1 need to be tendered first and that PW1 i.e. Mr. Christian
London needed to be examined first. Though, it is not clear from the
order passed by the Joint Registrar on 11.10.2006 that any such
objection was raised by the defendant, it is argued by learned counsel
for the plaintiff that it was at the defendant's behest that the cross-
examination of the witness, who was present, namely, Mr.Anoop Singh
could not proceed. Even on that date the defendant did not raise any
objection to the filing of the fresh documents by Mr.Christian London
with his affidavit. On the contrary, the order shows that the production
of Mr. Christian London as the first witness to tender the documents
filed by him before examination of the other witness was ordered.
Even if the defendant had any valid objection to the
CS (OS) No. 894/2001 Page No. 6 of 18
production of the said documents with the affidavit of Mr.Christian
London, in terms of sub-rule 4 of Rule 4 of Order 18, the objection of
the defendant could have been recorded and the cross-examination of
the witness proceeded with. However, learned counsel for the
defendant chose not to proceed with the cross-examination of Mr.
Christian London, when the matter came up on 16.1.2007 before the
Joint Registrar.
In my view the conduct of the defendant in not raising any
objection to the filing of the aforesaid documents with the affidavit
filed on 3.12.2005, in the aforesaid facts and circumstances amounts
to a waiver by it of its objections. The defendant knew that the witness
was specially coming from France for the recording of his evidence. He
did not raise the objection when it could have been so raised earlier
and waited for the witness to arrive. The conduct of the defendant is
clearly designed to frustrate the progress of the trial and to
inconvenience the plaintiff's witness.
The fresh documents had been filed as early as on
3.12.2005 and the defendant has had notice of these documents since
then. These documents are (i) the Notarised Power of Attorney, (ii)
Certified copy of the plaintiffs copyright registration, (iii) Notarised
copies of world wide registration certificates (iv) certified copies of
court orders and (v) some literature/reports in respect of the plaintiffs
CS (OS) No. 894/2001 Page No. 7 of 18
copyright and trademark.
The documents at Sl.Nos. (i) to (iv) above are of the kind
which can be allowed to be produced since they are in the nature of
public documents. So far as documents at Sl.No. (v) above are
concerned, even they can be allowed to be produced at this stage. No
serious prejudice would be caused to the defendant by the production
of any of these documents. The defendant would have his right to
cross examine the witness and raise his objection to the admissibility
of these documents. In the interest of justice, I grant leave to the
plaintiff to produce the said documents subject to any objections with
regard to their admissibility, and the manner of proof of the contents of
the documents.
The next objection raised by the defendant was that various
documents sought to be placed on record are in foreign languages of
which no translation has been placed on record, in accordance with the
Delhi High Court Rules and Orders. Learned counsel for the defendant
referred to Rule 5 in Chapter 3 of Delhi High Court (Original) Rules,
1967 which inter alia states that no document in a language other than
English shall be received by the Registry unless it is accompanied by a
translation in English. It further states that a suit or other proceedings
will not be set down for hearing until all the documents filed on which
the parties intend to rely, are in English or have been translated into
CS (OS) No. 894/2001 Page No. 8 of 18
English.
Here again, I find that the said reason by itself is not good
enough for the defendant not to proceed with the cross-examination of
the witnesses. As noticed herein above, the defendant could well have
raised his objections to the said documents being proved on record and
all such objections would have to be dealt with by the court at the
stage of arguments. Learned counsel for the plaintiff submits that he
is aware of the fact that some of the documents are in foreign
languages and since translations have not been filed, they cannot be
legally proved. However, that by itself cannot be a ground for the
defendant not to proceed with the cross-examination of the witnesses.
I agree with the contention of the plaintiff that defendant could have
raised its objection before the Local Commissioner with regard to the
admissibility of the documents in other languages but could not have
refused to cross-examine the witnesses or to prevent the progress of
the cross-examination altogether.
The next ground taken by the defendant for not proceeding
with the cross-examination was that the affidavit of Mr. Christian
London filed on 03-12-2005 has not been legalized or aposilled and as
such it cannot be tendered in evidence. According to the defendant, it
is not an affidavit in the eyes of law. The argument of the defendant is
that the affidavit of Mr. Christian London ought to have been affirmed
CS (OS) No. 894/2001 Page No. 9 of 18
before a Diplomatic or Consular Officer in France in accordance with
Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act,
1948. He submits that the affidavit of Mr. Christian London appears to
have been merely notarized by a French Notary. However, there is no
certification by the Indian Consular or Diplomatic Officer of the fact
that the so called notary was, in fact, authorized to notarize the
affidavit of the witness.
He relied on AIR 1967 Calcutta 636 in Re. K.K. Ray (Private)
Ltd. In this case, the court was concerned with the two affidavits
sworn before a Notary Public of New York, USA. The notarial act of the
Notary had been certified by the Certify Country Clerk, a Clerk of the
Supreme Court, New York County which is a court of record by
affixation of its seal. Further, there was a certificate given by the
Consulate General of India, New York for legalizing the seal of the Clerk
of the County of New York. The court rejected the objections raised to
the affidavits in question. In the course of its judgment, the court
observed as follows :-
“(32) The Notary is now internationally known today
in the modern world of commerce, industry and
dealings between different nations and countries.
Reciprocity between different countries is its
essential basis. Without this reciprocity and mutual
respect the whole system and rationale of notarial
acts will break down, to the great detriment of
commercial transactions throughout the world and
their due administration by courts of law in different
CS (OS) No. 894/2001 Page No. 10 of 18
countries and will jeopardised international
commerce, law merchant and administration of
justice. It is precisely to provide facilities of
receiving affidavits, documents, protests of bills of
exchange and other commercial papers that this
institution of Notary Public grew up to fulfil a very
practical need. Unnecessary or illogical
impediments should not be put on his way. No
doubt that does not mean that law of the Courts
should not ensure reasonable authenticity and
dependability of notarial acts.”
The defendant's counsel also drew my attention to the
“Convention Abolishing The Requirement Of Legislation For Foreign
Public Documents”, to which France is a Member State while India is
also a non-Member signatory State. Article 1 of this Convention states
:-
“Article 1
The present Convention shall apply to public
documents which have been executed in the
territory of one Contracting State and which have to
be produced in the territory of another Contracting
State.
For the purposes of the present Convention, the
following are deemed to the public documents:
a) tribunals of the State, including those emanating
from a public prosecutor, a clerk of a court or a
process-server;
b) ...............................;
c) notarial acts; .......................”
Under Article 2, the contracting States are obligated to
exempt from or legalization the documents to which the said
Convention applies and which have to be produced in its territory.
CS (OS) No. 894/2001 Page No. 11 of 18
Legalization means only a formality by which the Diplomatic or
Consular agents of the country in which the document has to be
produced, certify the authenticity of the signature, capacity in which
the person signing the document has acted and the identity of the seal
or stamp which it bears.
Under Article 3, it is stated :-
“Article 3
The only formality that may be required in order to
certify the authenticity of the signature, the capacity
in which the person signing the document has acted
and, where appropriate, the identity of the seal or
stamp which it bears, is the addition of the certificate
described in Article 4, issued by the competent
authority of the state from which the document
emanates.
However, the formality mentioned in the preceding
paragraph cannot be required when either the laws,
regulations, or practice in force in the State where
the document is produced or an agreement between
two or more Contracting States have abolished or
simplified it, or exempt the document itself from
legalisation.”
Article 4 reads :-
“The certificate referred to in the first paragraph of
Article 3 shall be placed on the document itself or on
an “allonge”, it shall be in the form of the model
annexed to the present Convention.
It may, however, be drawn up in the official language
of the authority which issues it. The standard terms
appearing therein may be in a second language also.
The title “Apostille (Convention de La Haye du 5
octobre 1961)” shall be in the French language.”
The submission of the defendant based on Section 3 of the
CS (OS) No. 894/2001 Page No. 12 of 18
Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, appears
to be wholly misplaced. By the said provision, the Diplomatic and
Consular Officers have been empowered to administer oath and take
any affidavit and also to do any notarial act which a Notary Public may
do in the State where the Diplomatic or Consular Officer is functioning.
The documents notarized by such officers would be considered as
validly notarized in India. It does not say that unless a Diplomatic or
Consular Officer in the foreign country where the oath is administered
or affidavit is taken, does the notarial act, the affidavit or the
statement on oath cannot be used in India, though it may have been
notarized by a Notary functioning in that foreign country. The notarial
act of the Diplomatic or Consular Officer of India in the foreign country
is made as effectual as the notarial act of any lawful authority in that
particular country/State. Merely because the affidavit of Mr. Christian
London is not notarized by the Diplomatic or Consular Officer of India in
France, that by itself cannot mean that the said affidavit is not
legalized or aposilled. Even the judgment relied upon by the defendant
in AIR 1967 Calcutta 636 does not advance the case of the
defendant. On the contrary, the principle stated in the said case
completely supports the plaintiff. It is clear that the defendant is
seeking to put unnecessary and illogical impediment in the production
of the affidavit. There is no ground stated by the defendant to impinge
CS (OS) No. 894/2001 Page No. 13 of 18
upon the authenticity or the dependability of the notarial act done by
the Notary Public while notarizing the affidavit of Mr. Christian London.
Even the Convention relied upon by the plaintiff does not support the
arguments of the defendant. As noticed above, notarial acts are
deemed to be public documents by virtue of Article 1. Section 3 of the
Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 is, in fact,
in conformity with Article 2 since it does not purport to limit the
process of legalization merely to the Diplomatic or Consular agents of
India who are working in foreign countries. No other legal provision
has been cited by either party which requires the process of
legalization of documents to be done only by the Diplomatic and
Consular Officers of India who are working in foreign countries. Article
3 also is of no avail to the defendant and fully supports the case of the
plaintiff. Firstly, the said Article says that the only formality that
'' may'' be required in order to certify the authenticity of the signature,
the capacity in which the person signing the document has acted and
the identity of the seal or stamp which it bears, is the addition of the
certificate described in Article 4. In India, there is no formality
prescribed with regard to the certification of authenticity of signature
of the Notary, the capacity in which the Notary signs the document, or
the identity of the seal or stamp which he affixes on the document. By
virtue of later part of Rule 3, such condition cannot be required for
CS (OS) No. 894/2001 Page No. 14 of 18
purpose of legalization of documents notarized in foreign countries.
On the other hand, learned counsel for the plaintiff has relied
nd
upon AIR 1980 Allahabad 369, Abdul Jabbar & others Vs. 2
Additional District Judge, Orai & others. In this case, the court
after following the cited decisions, held that Section 85 of the Indian
Evidence Act (which raises a presumption in respect of a Power of
Attorney having been executed before an authenticated Notary Public)
applies equally to the documents authenticated by Notaries Public of
other countries. The court held - “ In my opinion, documents which
purport to be executed before or authenticated by Notaries Public,
bearing proper seals, of other countries ought to be presumed to have
been duly notarized within the meaning of Section 85......”
The plaintiff also relied upon AIR 1976 Delhi 263 National
Grindlays Bank Ltd. Vs. M/s. World Science News & others . This
court in para 11 inter alia held as follows :-
''.......... the purpose of Section 57 and 85 is to cut
down recording of evidence. For such matters, like
the due execution of a power of attorney in the
present day of international commerce, there is no
reason to limit the words “Notary Public” in Section
85 or Section 57 to Notaries appointed in India. The
fact that notaries public of foreign countries have
been recognized as proper authorities for due
execution and authentication for purpose of Section
85 of the Evidence Act is illustrated by the Supreme
Court in case Jugraj Singh V. Jaswant Singh, (1971)
1 SCR 38 = (AIR 1971 SC 761). In this case the
Supreme Court held that a power of attorney
CS (OS) No. 894/2001 Page No. 15 of 18
executed and authenticated before a notary public
of California satisfied the test of Section 85 of the
Evidence Act and Section 33 of the Indian
Registration Act. If the interpretation of notary
public is limited to notaries public appointed in this
country only, it will become impossible to carry on
commerce with foreign countries. Surely, Section
57 of the Indian Evidence Act enjoins upon the
Courts to take judicial notice of seals of Notary
Public. Such judicial notice cannot be limited to
Notaries appointed in India only..........”
In 37(1989) DLT 88 Rajesh Wadhwa Vs. Dr. (Mrs.) Sushma
Govind , this court has held that even though there might not be
reciprocity between India and another country (in that case, USA) u/s
14 of the Notaries Act, 1952, the notarial acts of the Notaries in the
foreign country could be given legal recognition by the courts and
authorities in India. The Notification u/s 14 of the Notaries Act was
held to be non-mandatory.
Learned counsel for the plaintiff also submitted, and I think
rightly so, that even if there was a doubt about the affidavit of the
witness not being duly attested as being made on solemn affirmation,
since the witness was personally present to dispose on oath, he could
well have been put under oath and could have made a statement that
the affidavit filed on 3.12.2005 was a statement made on oath.
In the light of the aforesaid discussion, in my view the objections
raised by the defendant are liable to be rejected.
On the other hand, the defendant has succeeded in delaying the
CS (OS) No. 894/2001 Page No. 16 of 18
progress of the trial and cross-examination of a foreign witness who
has been available since 16-01-2007. His cross-examination could not
th th
take place on 16 and 17 January 2007 on account of the unjustified
and wholly unacceptable conduct of the defendant. All the objections
raised by the defendant were of the nature which could have been
raised during the course of cross-examination of the witness and the
cross-examination ought not to have been refused by the defendant.
In my view, the defendant by its conduct, has disentitled itself to its
right of cross-examining the witness. The defendant must be taken to
have acted at its own peril. Due to the conduct of the defendant, this
court has had to put aside the other urgent and pressing matters since
a foreign witness is waiting to be cross-examined before he leaves
India.
I, therefore, allow as the last and the only opportunity to
defendant to cross-examine the aforesaid plaintiff's witness today itself
at 2 P.M. before the Joint Registrar/Local Commissioner subject to the
payment of Rs.50,000/- as costs. The Joint Registrar may conduct the
cross-examination today itself and if necessary, tomorrow as well. The
matter be placed before the Joint Registrar today at 2 P.M. for
recording of evidence.
CS (OS) No. 894/2001 Page No. 17 of 18
January 18, 2007 VIPIN SANGHI, J
mw/spg
CS (OS) No. 894/2001 Page No. 18 of 18