(Prayer: This Writ Petition is filed Under Articles 226 and 227 of the Constitution of India praying to direct the issuance of a commission, to give effect to the letter of request dated 30.07.2020 issued by the United States District Court for the Southern District of New York, with all powers under the CPC for the purpose of collecting evidence and Examination of Witnessess and etc.)1. Petitioner happens to be a plaintiff along with the Federal Provinces in Case 1:20-cv-00706-DLC wherein VYERA PHARMACEUTICALS & two others are the defendants; the said case is pending consideration on the file of the Hon'ble District Court for the Southern District of New York, USA; the case involves an allegation that by employing an unlawful anti-competitive scheme, the defendants have blocked lower-cost generic competition to Daraprim, an essential drug used for treating the potentially fatal parasitic infection namely, Toxoplasmosis.2. Petitioner's application for securing the oral & documentary evidence in terms of The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of March 18, 1970 having been favoured, the said Court has approved the Letter of Request for the collection & recording of evidence, and pursuance thereof the petition at hands, has arisen.3. Having heard the learned counsel for the petitioner and having perused the petition papers, this Court is of the considered opinion that the prayers made merit grant because:(A) The basic law relating to accomplishment of "commissions issued by the foreign courts" is found in the provisions of Sec.78 r/w Rules 19 to 22 of Order XXVI of the Code of Civil Procedure, 1908; Section 78 reads as under:"S.78. Commissions issued by foreign Courts.--Subject to such conditions and limitations as may be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses shall apply to commissions issued by or at the instance of--(a) Courts situate in any part of India to which the provisions of this Code do not extend; or(b) Courts established or continued by authority of the Central Government outside India; or(c) Courts of any state or country outside India."(B) The provisions of Order XXVI Rule 19 of the Code being complementary to Sec.78 lay down a detailed procedure, with the following text:"19. Cases in which High Court may issue commission to examine witness-(1) If a High Court is satisfied ---(a) that a foreign Court situated in a foreign country wishes to obtain the evidence of a witness in any proceeding before it,(b) that the proceeding is of a civil nature, and(c) that the witness is residing within the limits of the High Court's appellate jurisdiction,it may, subject to the provisions of rule 20, issue a commission for the examination of such witness.(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of sub-rule(1)--(a) by a certificate signed by the consular officer of the foreign country of the highest rank in India and transmitted to the High Court through the Central Government, or(b) by a letter of request issued by the foreign Court and transmitted to the High Court through the Central Government, or(c) by a letter of request issued by the foreign Court and produced before the High Court by a party to the proceeding."There is no need for any interpretation of these provisions which are as clear as Gangetic waters.(C) The aforementioned provisions of the Code which were originally enacted by Act 10 of 1932 have been re-framed in the 1976 amendment, for giving effect to the Directive Principles of State Policy enshrined in Article 51 of the Constitution of India; the said Article is phrased as under:"Article 51. The State shall endeavour to-- [[(a) promote international peace and security;(b) maintain just and honourable relations between nations;(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and(d) encourage settlement of international disputes by arbitration".The text of the aforesaid provisions of the Code are presumably enacted for giving effect inter alia to the intent of The Hague Convention to which both India and United States of America are parties; the Apex Court in SAFAI KARMACHARI ANDOLAN vs. UNION OF INDIA, (2014) 4 SCALE 165 has ruled that the International Covenants which have been ratified by India are binding to the extent they are not inconsistent with the provisions of the domestic law.(D) This Court does not see any repugnancy between the provisions of the said Convention and those of domestic law; conversely, they are complementary to each other; the Indian law read with the provisions of the said Convention empowers this Court to appoint a Commission to collect evidence from witnesses on the formal request of a Foreign Court before whom a proceeding of civil nature is pending. The structure of the petition prima facie shows that: (a) the subject District Court wishes to obtain evidence of witnesses whose names are mentioned in the Letter of Request, (b) the proceedings pending before the said Court are of a civil nature, and (c) the witnesses mentioned in this Petition and in the Letter of Request are within the jurisdictional limits & power of this Court.4. The learned counsel for the petitioner has, this day, filed a handwritten Memo suggesting the name of Captain Aravind Sharma, a High Court advocate, for effectuating the Letter of Request, offering a fee of Rs.25,000/- per sitting plus clerkage & miscellaneous expenses; Captain Sharma is stated to have gracefully signified his consent to the suggestion and has undertaken to accomplish the task accordingly; he is requested to file a formal memo in writing to the same effect.5. This Court does not see any impediment, legal or factual, for not sanctioning the prayer made in the Petition.In the above circumstances, this Petition is allowed as under:(i) Captain Aravind Sharma is hereby appointed as a One Man Commission to give effect to the Letter of Request dated 30.07.2020 issued by the United States District Court for the Southern District of New York, USA, in the subject case;(ii) the Commission shall have all powers and authority that avail to ordinary Civil Courts in the State of Karnataka, India, under the provisions of Code of Civil Procedure, 1908 and any cognate statute, for the purpose of subpoena and for summoning any documents/records;(iii) the Commission shall permit the representatives of the parties to the Case 1:20- cv-00706-DLC or their counsel to be present or participate in person or through video conferencing, in it's proceedings for the collection & copying of evidence and for conducting the questioning of the witnesses;(iv) the Commissioner after the execution of Commission shall return all the record together with the evidence taken, to this Court for forwarding it to the Central Government for onward tran
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smission to the foreign court concerned in terms of Rule 22 of Order XXVI of the Code in the manner set out in the Letter of Request of the said foreign court;(v) it is open to the Commissioner, parties and witnesses concerned, to seek any further direction/clarification, at the hands of this Court should the need therefor arise, for effectuating the subject Letter of Request; and,(vi) the petitioner is directed to mail forthwith a copy of this judgment to all the parties to the proceedings in Case 1:20-cv-00706-DLC, to the Registry of the District Court for the Southern District of New York, USA and to Captain Aravind Sharma; it shall also send by speed post a copy to the Ministry of Foreign Affairs, Government of India, New Delhi, for its cognition & record.