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Reza Daru Pars Company & Others v/s Nani Pharmaceuticals Pvt. Ltd. & Another

    CS. (COMM). No. 194 of 2016
    Decided On, 29 November 2018
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE RAJIV SAHAI ENDLAW
    For the Plaintiffs: Rajiv Kumar Tripathi, Hare Ram Tiwary, Advocates. For the Defendants: None.


Judgment Text
IA No.16262/2108 (of plaintiffs for video recording of evidence)

1. The plaintiffs had earlier filed IA No.14776/2018 which had come up before this Court on 29th October, 2018, when the counsel for the defendant No.1 as well as the counsel for the defendant No.2 had appeared on advance notice and the prayer was allowed but the relief not granted and the application rejected owing to the plaintiffs having not mentioned the Co-ordinator at the remote end for the purpose of video recording of evidence.

2. The counsel for the plaintiffs in this application states that the Co-ordinator at the remote end is not required to be mentioned and has to be appointed by the Court and has cited Clause 3.4 of the Video Conferencing Guidelines issued by the High Court of Delhi and International Planned Parenthood Federation (IPPF) Vs. Madhu Bala Nath (2016) 226 DLT 587 (DB) in this regard.

3. Today none appears for the defendants.

4. However, the need to issue notice to the defendants is not felt because advance copy is stated to have been served and the defendants cannot stall the decision of the application by choosing not to appear and more so when the contentions of the defendants in that regard were heard on 29th October, 2018 and following order passed:-

'IA No.14776/2018 (of the plaintiffs under Order XVIII Rules 3 and 4 CPC)

1. The plaintiffs seek examination of their witnesses via video conferencing.

2. The counsel for the defendant no.1 and the counsel for the defendant no.2 appear on advance notice.

3. The counsel for the defendant no.1 when asked whether has any objection to the application, contends (i) that the plaintiffs have not approached this Court with clean hands, and, (ii) that it needs to be ascertained whether India has any extradition treaty with Iran where the plaintiff no.1 is situated.

4. As far as the second of the aforesaid contentions is concerned, whether India has any extradition treaty with Iran or not is not relevant for the present purpose. The application does not entail any aspect of extradition of the plaintiff no.1 or any of its officials from Iran. Qua the second of the aforesaid contentions, I have enquired from the counsel for the defendant no.1 as to how the plea if any of the defendant no.1, of the plaintiffs having not approached this Court with clean hands will be affected whether the witnesses of the plaintiffs are examined via video conferencing or by personally appearing before this Court. A perusal of the issues framed in the suit on 10th August, 2018 also does not show any issue substantially framed in this regard. 5. The counsel for the defendant no.1 then states that an opportunity to file reply be given.

6. The procedure, of the counsels appearing on advance notice, was introduced to obviate delays in disposal of the applications which can be disposed of on the very first date and the resultant delays in disposal of the suit. The counsels, when appearing on advance notice, are required to appear fully briefed and unless make out a case for grant of an opportunity to file reply, are not entitled to defer disposal on such grounds. The counsel for the defendant no.1 has not been able to make out any argument for opportunity to file reply to be granted.

7. The argument of the counsel for the defendant no.2 also is that the defendants are disputing the documents of the plaintiffs. However, the counsel for the defendant no.2 is unable to explain as to how the personal presence of the witnesses before this Court will assist the defendants in establishing so or as to how the examination via video conferencing will prejudice the defendants.

8. All that can be observed is that if during the recording of evidence of the witnesses of the plaintiff via video conferencing, it is felt that the personal presence of the said witnesses is necessary before this Court, the same will be considered.

9. Else, this Court having framed Rules in this regard, the defendants cannot in a routine manner oppose the application.

10. The application is allowed.

11. The plaintiffs are permitted to examine Dr. Gholamreza Dehghanzadehvia video conferencing in accordance with the Guidelines issued by this Court.

12. The Registrar (Computers) is appointed as Co-ordinator for the said purpose.

13. The counsel for the plaintiff is however unable to name the Co-ordinator at the remote end to be appointed vide this order.

14. The applications for examination of witnesses via video conferencing are required to disclose the Co-ordinators at the remote end so that the defendants also have notice of the same.

15. The application of the plaintiffs is found to be deficient and is rejected.'

5. I am of the view that it is imperative for an application for video recording of evidence to specify the proposed Co-ordinator at the remote end because the Indian Embassy/High Commissioner is not available in all cities from where evidence via video conferencing may be recorded. My experience has also shown that appointing an official of the Indian Embassy/High Commissioner invariably leads to delays and it is more expedient that a Notary Public or other public officer in accordance with law of the place from where evidence is being recorded via video conferencing is appointed as the Co-ordinator at the remote end. It is also not as if only the official from Indian Embassy/High Commissioner can be so appointed. Clause 3.4 aforesaid, in entirety is as under:-

'3.4 The Co-ordinator at the remote point may be any of the following:-

(i) Where the person to be examined is overseas, the Court may specify the coordinator out of the following:.-

(a) the official of Consulate/Embassy of India,

(b) duly certified Notary Public/Oath Commissioner,

(ii) Where the person to be examined is in another State/U.T, a judicial Magistrate or any other responsible official as may be deputed by the District Judge concerned or Sub-Divisional Magistrate or any other responsible official as may be deputed by the District Collector concerned,

(iii) Where the person to be examined is in custody, the concerned Jail Superintendent or any other responsible official deputed by him,

(iv) Where the person to be examined is in a hospital, public or private, whether run by the Central Government, the State Government, local bodies or any other person, the Medical Superintendent or In-charge of the said hospital or any other responsible official deputed by him,

(v) Where the person to be examined is a juvenile or a child who is an inmate of an Observation Home/Special Home /Children's Home/Shelter Home, the Superintendent/Officer In-charge of that Home or any other responsible official deputed by him,

(vi) Where the person to be examined is in Nirmal Chhaya, the Superintendent/Officer In-Charge of the Nirmal Chhaya or any other responsible official deputed by him,

(vii) Wherever a co-ordinator is to be appointed at the remote point under Clause 3.4 sub-Clause (ii), (iii), (iv), (v) & (vi), the Court concerned will make formal request through the District Judge concerned to concerned official.

(viii) In case of any other person, as may be ordered by the Court.'

The said Guidelines are Annexure B to Rule 38 of the Delhi High Court (Original Side) Rules, 2018, which is as under:-

'38. Recording of evidence by video conferencing.-The Court/ Registrar/ Commissioner may, if it deems appropriate, direct use of video conferencing in accordance with guidelines issued by Court, from time to time, for conduct of court proceedings between Court(s) and remote site(s). Guidelines presently enforce are incorporated by inclusion in these Rules and annexed hereto as Annexure B'.

6. It will thus be seen that the Court has enough latitude in the matter of choosing Co-ordinator at remote end and it is for the applicant to propose the person most suitable and expedient and the Court, after hearing objection if any, can either appoint such person or reject the proposal. The Court, on its own may not always know whom to appoint. It is

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for this reason that vide order dated 29th October, 2018, finding that the plaintiff had not made any proposal for Co-ordinator at remote end, that the application was rejected. 7. The plaintiff/applicant is proposing official from Consulate Office of Indian Embassy, to whom defendants can have no objection. 8. The plaintiffs have stated that the witness is at Shiraz, Iran and there is a Consulate Office of Indian Embassy in the said city and has sought appointment of an official of the Consulate Office of the Indian Embassy as Co-ordinator at the remote end. 9. The application is allowed in continuation of the order dated 29th October, 2018, by directing the Consulate Office of the Indian Embassy at Shiraz, Iran to appoint a senior official for facilitating recording of evidence via video conferencing of Dr. Gholamreza Dehghanzadeh. 10. The application is disposed of.
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