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Diyora & Bhanderi Corporation & Others v/s Sarine Technologies Limited

    Special Civil Application No. 5533 of 2021
    Decided On, 26 March 2021
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE N.V. ANJARIA & THE HONOURABLE MR. JUSTICE A.C. RAO
    For the Appearing Parties: Anshin Desai, Manan A. Shah, Neeraj Malhotra, Dilip B. Rana, Sandeep Grover, Advocates.


Judgment Text
N.V. Anjaria, J.

1. Heard learned senior advocate Mr.Anshin Desai assisted by learned advocate Mr.Manan Shah for the petitioners and learned senior advocate Mr.Neeraj Malhotra with learned advocate Mr.Sandeep Grover and learned advocate Mr.Dilip Rana for the respondent.

2. The writ jurisdiction of this Court is invoked seeking to challenge order dated 03rd February, 2021 passed by the Commercial Court & 14th Additional District Judge, Surat which, as titled itself, is a Case Management Order passed in Trademark Suit No.6 of 2019.

3. The respondent-plaintiff has instituted against the petitioners-defendants the said suit alleging copyright infringement of its advisory software by the defendants. It appears that in the suit the court framed issues on 19th January, 2021 at Exh.210. It is recorded in the impugned order that stage of admission and denial of the documents is already completed and the list of witnesses are filed. Thereafter the court below conducted the hearing for the case management to fix the timeschedule and the manner of conducting the trial.

3.1 The impugned order is essentially and for all purposes reflects the fixation of time-table of conducting the case and the manner of conducting the trial, which the court has thought it fit, in the present circumstances, through the mode of Video Conferencing inter alia setting out the operating procedure for conducting the case.

3.2 While passing the impugned order, the court below also noted about the directions and the observations of the Apex Court in SLP No.21953 of 2019 whereby the Apex Court has expressed about expeditious conducting the trial of the suit. The court below has also observed about time-limit to complete the trial as prescribed under Rule 3 of Order XVA of the Commercial Courts Act and the present prevailing pandemic situation.

4. Learned senior advocate for the petitioners raised the same contentions which were raised before the court below for objecting to passing of such order. It was submitted that the matter is sensitive, that confidential information is involved and that the witnesses would be required to be confronted with the documents, further that defendants' witnesses when in remote area, would have connectivity issue. It was argued before the court below and re-argued before this Court that vaccination drive is on-going and the situation is at ease.

4.1 On the other hand, learned senior advocate for the respondent submitted that in the given situation and in the totality of the facts and circumstances, the order is proper which inter alia sets down the schedule of hearing and the manner of conducting the trial. It was additionally submitted, answering the contentions of the petitioners, that in all there are sixteen witnesses to be examined in the case. Out of sixteen witnesses, it was stated, eight witnesses are the witnesses of plaintiff and out of the said eight witnesses, five are in foreign country. It was submitted that as far as the witnesses who are in India, it is for the court to modulate the procedure of their examination depending upon the discretion of the court and the situation obtained.

5. We have considered the rival submissions in light of the impugned order. If the impugned order is closely noticed, in paragraph Nos.5 and 6, it is observed that both the parties are ad idem to the time-line for filing their respective affidavit-inchief. Accordingly, time-bound programme is fixed as per the tabular form indicated for filing affidavitin-chief of the witnesses whose names are mentioned. Similarly, in paragraph No.7, time-schedule is notified for cross-examination of the witnesses, while paragraph No.8 mentions the time for such cross-examination observing that witnesses shall ensure that the cross-examination may be completed on the dates allotted. Thereafter in paragraph No.9, the court has fixed the date for cross-examination of the expert witnesses of the respective parties and with regard to the time-schedule fixed for the above purposes, the parties are directed to pass-on the necessary intimation to the witnesses.

5.1 In paragraph No.5, the court observed about the situation obtained on account of COVID-19 spread,

"5. it is to be noted that irrespective of vaccination being done, there is still an eminent risk for a person to travel especially from abroad. Also notice has to be taken of the fact that even after travelling to India, there will be mandatory quarantine period which has to be undergone. Despite this, the risk still persist to all concern. The contention of the defendant that vaccination is already there, hence there is no risk, which I don't find to be justified. The question is whether it will be fair to ask a witness to travel all the way from Isreal to India and take risk of getting infected, on the say that vaccine exist."

5.2 The court below has appropriately taken note of the observations of the Supreme Court in the State of Maharashtra v. Dr. Praful B. Desai which highlights as to how trial could be conducted including recording of evidence therein by the mode of Video Conferencing without compromising with the procedure required to be followed in law and without deviating from the procedure established by law.

5.3 We may only reiterate the observations of the Apex Court to confirm the reasoning of the court below to further observe that the court below has appropriately considered them while passing the impugned order for case management and for fixing the time-schedule and for conducting the trial. We also take note of the submissions on behalf of the respondent that in respect of the witnesses to be examined who are in foreign country, the court may exercise its discretion as per the requirement depending upon the situation.

5.4 In the impugned order in final paragraph, on the basis of the judgment of the Delhi High Court in Zaishu Xie v. The Oriental Insurance Company Ltd.,2013 SCC Online Delhi 4394, the guidelines are set out by the court below for conducting the trial.

5.5 While the attention of the court was drawn to order of the Bombay High Court in Liverpool And London Steamship v. M.V. Sea Success I, (2005) 3 MhLj 1050 which inter alia observed that witness could give evidence in the room provided by the Indian High Commission and Indian High Commission will depute an officer at the earmarked place where the evidence is conducted, it is for the court below to consider such aspects in light of peculiar facts and requirements as may guide the court.

5.6 It could not be presumed that the court below would not be alive to the order of the Supreme Court dated 26th October, 2020 in Re Guidelines for Court Functioning through Video Conferencing During COVID 19 Pandemic [SMW (C) No.5/2020. which mandates for following the Video Conferencing Rules as may have been framed by the High Court concerned and if not framed by any High Court, to follow the Video Conferencing Rules provided by the E-Committee of the Supreme Court.

5.7 Judicial notice can be taken that this High Court in exercise of powers under Articles 225 and 227 of the Constitution, has framed the Rules called "The High Court of Gujarat Rules for Video Conferencing for Courts (High Court and Subordinate Courts), 2021". These Rules also required to

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be followed by the subordinate courts also, are exhaustive in dealing with all the facts and aspects of the video conferencing proceedings including the aspect that the `cate or required person remains oversees and in that case, the provision of the remote point coordinator is incorporated. It goes without staying that in the present case also, the court below shall abide by such directions and Rules. 6. We do not find anything in the impugned order which may persuade us to interfere with the same in exercise of our writ jurisdiction. Calling in question such order in writ jurisdiction partakes the abuse of process of law. It indeed smacks a delaying tactics and an approach on part of the petitioners defendants to avoid expeditious trial. 7. The petition and the prayer stand summarily dismissed.
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