INTERDIGITAL TECHNOLOGY CORPORATION & ORS. vs GUANGDONG OPPO MOBILE TELECOMMUNICATIONS CORP. LTD. & ORS.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 692/2021 & I.A. 41356/2024, I.A. 41357/2024, I.A. 41358/2024, I.A. 41359/2024
INTERDIGITAL TECHNOLOGY CORPORATION & ORS.
…..Plaintiffs
Through: Mr. Arvind Nigam, Sr. Advocate with Mr. Pravin Anand, Ms. Vaishali R. Mittal, Mr. Siddhant Chamola, Ms. Pallavi Bhatnagar and Ms. Gitanjali Sharma, Advocates.
Mob: 9145544111
versus
GUANGDONG OPPO MOBILE TELECOMMUNICATIONS CORP. LTD. & ORS. …..Defendants
Through: Mr. Saikrishna Rajagopal, Ms. Julien George, Ms. Anu Paarcha, Mr. Arjun Gadhoke, Mr.Aniruddh Bhatia, Mr. Vivek Ayyagari, Mr. Avijit Kumar, Ms. Garima Sahney, Ms. Charu Miglani Grover, Ms. N.Parvati and Ms. Subhoshree Sil, Advocates.
Mob: 8943728551
E-mail: n.parvati@saikrishnaassociates.com
+ CS(COMM) 707/2021 & CC (COMM) 23/2022, I.A. 21997/2022
INTERDIGITAL VC HOLDINGS INC & ORS. …..Plaintiffs
Through: Mr. Arvind Nigam, Sr. Advocate with Mr. Pravin Anand, Ms. Vaishali R. Mittal, Mr. Siddhant Chamola, Ms. Pallavi Bhatnagar and Ms. Gitanjali Sharma, Advocates.
Mob: 9145544111
versus
GUANGDONG OPPO MOBILE TELECOMMUNICATIONS CORP. LTD & ORS. …..Defendants
Through: Mr. Saikrishna Rajagopal, Ms. Julien George, Ms. Anu Paarcha, Mr. Arjun Gadhoke, Mr. Aniruddh Bhatia, Mr. Vivek Ayyagari, Mr. Avijit Kumar, Ms. Garima Sahney, Ms. Charu Miglani Grover, Ms. N.Parvati and Ms. Subhoshree Sil, Advocates.
Mob: 8943728551
E-mail: n.parvati@saikrishnaassociates.com
CORAM:
HON’BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
% 14.10.2024
I.A. 41356/2024, I.A. 41357/2024, I.A. 41358/2024, I.A. 41359/2024
Introduction:
1. The present judgment shall dispose of four applications, three filed on behalf of the plaintiffs, and one filed on behalf of the defendants, in CS(COMM) 692/2021.
2. I.A. Nos. 41356-41358/2024, are three applications that have been filed on behalf of the plaintiffs in CS(COMM) 692/2021, to place on record certain additional documents, filed along with the Evidence Affidavit of their three witnesses, i.e., PW1-PW3.
2.1 I.A. No. 41356/2024, has been filed by the plaintiffs seeking to place on record the additional documents, filed along with the Evidence Affidavit of Ms. Julia Mattis, PW-1, Fact Witness.
2.2 I.A No. 41357/2024, has been filed by the plaintiffs seeking to place on record the additional documents, filed along with the Evidence Affidavit of Dr. Jorge Padilla, PW-2, Economic Expert.
2.3 I.A. No. 41358/2024, has been filed by the plaintiffs seeking to place on record the additional documents, filed along with the Evidence Affidavit of Dr. Branimir Vojcic, PW-3, Technical Expert.
3. I.A. No. 41359/2024, has been filed on behalf of the defendants in CS(COMM) 692/2021, seeking to strike off the additional documents, filed along with the Evidence Affidavits of the three witnesses of the plaintiffs.
Submissions on behalf of Plaintiffs:
4. On behalf of the plaintiffs, the following submissions have been made:
4.1 The additional documents filed by PW1, sought to be placed on record, are the documents inter-se between the parties, such as updated correspondence, supporting delivery receipt and parties pleadings and written submissions in the parallel proceedings between the parties in the United Kingdom (UK). Further, publicly available documents from the internet, to reflect the plaintiffs financial figure and royalties being paid to them by third party licensees, have been filed.
4.2 The plaintiffs Economic Expert, PW-2, was engaged as an Economic Expert only in July, 2024, when the plaintiffs had to replace him as a witness, with the erstwhile Economic Expert, who was representing the plaintiffs in these proceedings. The said witness is an independent Economic Expert, and is entitled to rely on documents and evidence that is extraneous to the record in these proceedings, in support of his analysis and conclusion.
4.3 The additional documents filed by PW-2 are relevant and constitute material particulars, which are necessary for the true and full adjudication of the present dispute.
4.4 The documents filed by PW-2 include confidential third party market research data and publicly available news article from the internet. This is necessary to analyse the Patent License Agreements (PLAs). Further, due to confidentiality restrictions over the usage of such third party market research data, the plaintiffs were awaiting permission from such third parties to use the data. Such permission was secured only recently, between August, 2024 and September, 2024.
4.5 The documents filed by PW-2 are relevant and material for the plaintiffs case on Fair, Reasonable and Non-Discriminatory (FRAND) aspects, and willingness of the defendants to license the plaintiffs portfolio. 4.6 PW-3 has filed publicly available documents regarding the technical standard specifications to explain his analysis, and documents, that show 5G technology is used in India. Further, PW-3 has also filed log files, which are not additional documents. These log files are raw data regarding testing of the defendants phones. These log files were filed on a Compact Disc (CD), a copy of which was given to the defendants, as well. The defendants claim that some of these log files were not filed previously, and are being filed for the first time, is not correct.
4.7 The plaintiffs had filed all log files on 24th December, 2021. These log files were thereafter analysed by the plaintiffs Technical Expert, PW-3 and his analysis was placed on record through index dated 24th December, 2021 and 31st January, 2022.
4.8 The defendants Technical Expert, Dr. Zhi Ding, DW-3, has filed his own analysis in the form of a technical report dated 15th February, 2022. At several places in his report, he has addressed these log files and rebutted the plaintiffs Technical Experts reliance on them.
4.9 Upon noticing the defendants objection that these log files are not on record of this Court, the plaintiffs counsel conducted an inspection on 3rd October, 2024. The inspection revealed that while there are several folders on the CD containing log files, one folder containing some log files, seemed to have been corrupted or missing due to a technical glitch unknown to the plaintiffs and their counsel.
4.10 The plaintiffs legal representative had burnt all the log files on a CD and had filed the CD on 24th December, 2021. Due to technical glitches, some data may not have transferred completely, or may have got corrupted. An affidavit of the plaintiffs counsel is being filed in these proceedings, to this effect.
4.11 The defendants never pointed out that they did not have the full log files, despite their own expert having rebutted these log files in the report dated 15th February, 2022, filed with the written statement.
4.12 In the affidavit of admission or denial filed by the defendants along with their written statement in April, 2022, they provided a blanket denial for the entire CD containing the log files stating that the same is false, self-serving or unsubstantiated. The defendants refrained from pointing out that certain folders were not accessible. In any case, the plaintiffs have now given a complete copy of the log files to the defendants.
4.13 The documents filed along with the affidavits of the independent experts are crucial to the analysis that they have performed, and for substantiating the conclusions that have been reached in their affidavits.
4.14 Various judgments have been relied upon by the plaintiffs in support of their submissions to take the additional documents on record.
Submissions on behalf of Defendants:
5. On behalf of the defendants, the following submissions have been made:
5.1 The plaintiffs have filed two hundred twenty six additional documents, running into nine thousand five hundred plus pages, which have been filed for the very first time. Even though the plaintiffs were well aware that cross-examination of the plaintiffs witnesses is to commence shortly and that defendants would have only fourteen days to prepare for the same since service of the Evidence Affidavits, the plaintiffs have, for the very first time, placed voluminous documents and test logs, without taking the leave of the Court or giving any justification for the delay in filing the same.
5.2 Most of the additional documents sought to be filed, were in the power and possession of the plaintiffs, even prior to the institution of the suit. Therefore, the plaintiffs have absolutely no excuse for not having filed these additional documents at the appropriate stage.
5.3 The plaintiffs argument that the additional documents submitted with the plaintiffs Economic Expert, PW-2, are justified as they form a basis of the opinion rendered by him in his affidavit, cannot be accepted. Firstly, PW-2 cannot be viewed as an independent expert. He is nothing more than the plaintiffs witness, who is thereby bound to confine his evidence as per the pleadings and documents already on record. Reliance is placed upon decision dated 2nd February, 2017 in the case of F. Hoffman-La Roche Ltd. and Anr. Versus NATCO Pharma Limited., reported as 2017 SCC OnLine Del 7126.
5.4 Order XI Rule 1(5) of the amended Code of Civil Procedure (CPC), 1908 mandates that additional documents cannot be relied upon, without taking the leave of the Court. The plaintiffs have given no justification for not having filed the objected documents at the earlier stage. There is an embargo on the court not to allow the plaintiffs to rely on any document, which was in plaintiffs power, possession, control or custody, and not disclosed along with the plaint. Reliance is placed on the judgment passed in the case of Zee Entertainment Enterprises Ltd. Versus Saregama India Ltd., MANU/DE/3096/2019; judgment passed in the case of CEC-CICI JV & Ors. Versus Oriental Insurance Co. Ltd., 2023 SCC OnLine Del 2797 and judgment passed in the case of Entertainment Network (India) Ltd. Versus HT Media Limited, 2022 SCC OnLine Del 2636.
5.5 The plaintiffs submissions about the additional test logs, appear to be inconsistent from the record.
5.6 Upon joint inspection directed by this Court vide order dated 9th October, 2024, it transpires that the CD dated 24th December, 2021 on the court record and what was served upon the defendants on the said date, contained a total of one hundred twelve files. Therefore, it cannot be claimed that corruption of the CD on the court record has resulted in any files getting deleted or going missing.
5.7 The list of ten documents as given by the plaintiffs from the log details, which the plaintiffs intend to rely during the course of examination, are neither on the CD dated 24th December, 2021 of the court record, nor the defendants record of the said date.
5.8 The CD dated 30th September, 2024 on the court record and what was served on the defendants on 28th September, 2024, contained a total of three hundred thirty eight files, i.e., two hundred twenty six additional files, when compared to the CD dated 24th December, 2021. A comparison of files on both CDs, i.e., dated 24th December, 2021 and 30th September, 2024, was handed over by the defendants during the course of arguments to contend that only summary of the log files had been filed earlier in the CD dated 24th December, 2021, whereas, detail log files have been filed with the CD dated 30th September, 2024. Thus, it is submitted that log files and log summary filed on 24th December, 2021 by the plaintiffs, alone should be relied upon.
5.9 There are a total of two hundred twenty six additional files added to the evidence, when compared to the previous record. Thus, it is clear that the plaintiffs submissions in this regard are inconsistent with the record.
5.10 Plaintiffs while insisting on expedited trial have consistently caused delay in the present proceedings.
5.11 Allowing the additional documents would be in gross violation of the Principles of Natural Justice. Defendants would be grossly prejudiced if these additional documents are allowed to be placed on record. This Court has time and again held that merely because a party could cross-examine the witness on the additional documents, cannot be the reason to allow for additional documents to be filed without the leave of the Court, as it results in inordinate delay in commercial suits.
5.12 The decisions relied upon by the plaintiffs do not justify allowing the additional documents at this belated stage in a commercial matter. The decisions relied upon by the plaintiffs are all distinguishable, and do not apply to the facts of the present case. Most of the decisions are not relevant, as they were passed much prior to the Commercial Courts Act, 2015 came into being. Thus, Order XI CPC was not considered in these cases.
Proceeding before the Court
6. During the course of hearing, it was emphatically argued by learned Senior Counsel for the plaintiffs that the log files filed in the CD dated 30th September, 2024, along with Evidence Affidavit of PW-3, had been filed earlier, and on account of corruption of the CD on the Court record, all the data could not be accessed. On the other hand, much emphasis was laid by learned counsel appearing for the defendants that the log details filed by the plaintiffs along with the Evidence Affidavit of PW-3, were new documents and the same did not form part of the CD dated 24th December, 2021 on the Court record, that had been filed by the plaintiffs along with the plaint.
7. In view of the contentious issues raised by the parties, this Court vide order dated 07th October, 2024 directed the parties to inspect the Court record in the presence of the Technical Expert of this Court. Accordingly, the parties carried out the inspection of the Court record on 08th October, 2024, and made their submissions, in that regard.
8. The plaintiffs filed an affidavit of the Managing Associate working with the firm representing the plaintiffs, wherein, it has been deposed that while preparing affidavit of PW-3, no new log files have been added. The said Advocate also addressed this Court in order to submit that she had downloaded all the data, had created a V-transfer link and had transferred full data of the log files to the Information Technology (IT) team of the firm. She had transferred all the data, as per her true belief and knowledge. However, at the time of inspection, as directed by this Court, she discovered that all the documents of the log files were not on the Court record in the earlier CD filed in December, 2021. She submitted that since the files were identical, she misunderstood and believed that all the files had been transferred on the CD, which was filed in December, 2021. However, due to some corruption and technical glitch, all the files were not transferred, though she intended to transfer all the files.
9. Learned counsel appearing for the defendants took this Court through the various screenshots of the CD containing the log files filed by the plaintiffs in December, 2021 and the CD filed in September, 2024 along with Evidence Affidavit of PW-3. By reference to the comparison of the said CDs, it was submitted before this Court that the log files now filed along with Evidence Affidavit of PW-3, had not been filed earlier at the time of filing documents along with the plaint. It was submitted that only summaries of the log files were filed earlier, while detailed log files have been filed along with the Evidence Affidavit of PW-3, now.
10. Per contra, learned Senior Counsel appearing for the plaintiffs drew the attention of this Court to the analysis of the defendants Technical Expert, wherein, reference had been made by the Technical Expert of the defendants to the log files filed by the plaintiffs. Thus, it is submitted that these log files are not new documents and that the witnesses of the plaintiffs have not travelled beyond the pleading.
Findings and Analysis:
11. I have heard learned counsels for the parties and have perused the record.
12. As regards the documents filed along with the Evidence Affidavit of fact witness, Julia Mattis, PW-1, it is noted that seventeen additional documents have been filed therein. At the outset, this Court notes the submission made by learned Senior Counsel for the plaintiffs that the Annual Report of the plaintiffs for the year 2018, filed along with the Evidence Affidavit of PW-1, is not pressed by the plaintiffs.
12.1 It is to be noted that five documents filed by PW-1, are mere proof of delivery of letters written by the plaintiffs to the defendants. The corresponding letters are already filed with the plaint. Since the defendants had denied receipt of these letters, proof of delivery of the said letters, have been filed along with the Evidence Affidavit of PW-1. The said five documents are as follows:
i. E-mail from Fedex showing that plaintiffs letter dated 27th October, 2014 to Sky Lee. General Manager of defendant no.1 in Dongguan, China was delivered on 30th October, 2014.
ii. E-mail from Fedex showing that plaintiffs letter dispatched on 11th June, 2015 to Sky Lee, Overseas Business Division of defendant no.1 in Dongguan, China was delivered on 15th June, 2015.
iii. E-mail from Fedex showing that plaintiffs letter dispatched on 05th April, 2016 to Sky Li, VP Managing Director IMB of defendant no.1 in Dongguan, China was delivered on 08th April, 2016.
iv. E-mail from Fedex showing that plaintiffs letter dispatched on 21st April, 2016 to Sky Li, of defendant no.1 in Dongguan, China was delivered on 25th April, 2016.
v. E-mail form Fedex showing that plaintiffs letter dispatched on 18th August, 2016 addressed to Mr. Adler Feng, Director of IP, defendant no.1, was delivered in Dongguan, China on 25th April, 2016.
12.2 Seven documents are inter se parties, which pertain to the period after the institution of the suit.
12.3 Thus, there are four letters exchanged in inter-party negotiations between December, 2022 and October, 2023, details of which are as follows:
i. Plaintiffs E-mail dated 14th February, 2023
ii. Plaintiffs E-mail dated 04th April, 2023
iii. Plaintiffs E-mail dated 16th October, 2023
iv. Defendants E-mail dated 01st December, 2022
12.4 Further, three documents pertain to excerpts from pleadings filed by defendants in the UK proceedings between August, 2023 and April, 2024, regarding the royalty payable to plaintiffs, details of which are as follows:
i. Oppos Re-Amended Responsive Statement of Case in the UK proceedings filed on 03rd August, 2023 containing its position on the FRAND value for a license to plaintiffs portfolio.
ii. Oppos counsels letter to InterDigitals counsel in the UK proceedings filed on 29th February, 2024 containing its position on the FRAND value for a license to plaintiffs portfolio.
iii. Excerpt of document titled Oppos Written Closing Submissions as filed by Oppo in the UK proceedings.
12.5 Lastly, four documents are publicly available website printouts, which merely update the information about the plaintiffs, already given in the plaint, which are as follows:
i. Plaintiffs website containing an extract from the Annual Report of the plaintiffs from 2023.
ii. Printout of the plaintiffs website containing information on the plaintiffs patent portfolio data.
iii. Printouts of the reports Innovation Momentum: The Global Top 100 reports published by Lexis Nexis.
iv. Printout of FORM 8-K filed by the plaintiffs with the Securities and Exchange Commission on 03rd October, 2022.
12.6 Thus, perusal of the additional documents filed by PW-1 along with her Evidence Affidavit show that the same are in the nature of documents to prove letters written by the plaintiffs to the defendants, which are already on record, receipt of which have been denied by the defendants in the admission-denial of the documents. Further, the other set of documents pertain to the inter-se letters between the parties regarding negotiations after the filing of the suit. Other documents pertain to the excerpts filed by the defendants in the UK proceedings after filing of the suit. Thus, it is manifest that the additional documents filed by PW-1 were not in the power, possession, control or custody of the plaintiffs at the time of filing of the suit. All the documents are subsequent documents, which find genesis in the pleadings. No new case has been set up by the plaintiffs by filing of the said additional documents. The plaintiffs have shown reasonable cause for non-disclosure of the said documents along with the plaint.
13. The documents filed along with the Evidence Affidavit of Economic Expert, Dr. Jorge Padilla, PW-2, are ninety seven, out of which the defendants have objected to eighty five documents.
13.1 This Court notes that the plaintiffs Economic Expert was formally engaged in the present case only with effect from 26th July, 2024, when he was appointed as a member of the Confidentiality Club, upon substitution of the earlier Economic Expert on account of his ill-health.
13.2 This Court notes the submission made by learned Senior Counsel for the plaintiffs that the forty seven documents filed along with Evidence Affidavit of PW-2, comprise third party market research data, which is necessary to analyse and unpack each PLA, which the defendants have demanded disclosure in the present case. This Court further notes the submission of the plaintiffs that the market data is confidential and requires permission from third parties, to use it externally. Permission for use of this data for the purposes of proceedings in the present case, were secured from various third parties, between August, 2024 and 18th September, 2024.
13.3 Further, thirty seven documents are the documents comprising information available on the internet, which the expert has gathered by himself to support his analysis and conclusions.
13.4 One document is a tabulation explaining the calculations and analysis done by PW-2, in support of his affidavit. This is an extension of his Evidence in Chief.
13.5 Considering the documents filed by PW-2, it is to be noted that the documents filed by PW-2, who is plaintiffs Economic Expert, have been gathered by the said expert to support his own analysis and conclusions. An expert is duty bound to provide not just his opinion, but also the material and scientific data that supports such an opinion.
13.6 At the time of filing an Evidence Affidavit, the expert witness is entitled to file documents in order to justify and substantiate his inferences and deductions. In the absence of the relevant documents, the deposition of the expert witness would be meaningless and the Court would have no means to draw any inference from the expert opinion. This would defeat the whole purpose of filing Evidence Affidavit of an expert witness. Thus, holding that the duty of an expert witness is to furnish the judge with necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the judge to form his independent judgment by application of the said criteria, Supreme Court in the case of State of Himachal Pradesh Versus Jai Lal and Others, (1999) 7 SCC 280, has held as follows:
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18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
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(Emphasis Supplied)
14. Dr. Branimir Vojcic, the technical expert, PW-3 has filed ten publicly available documents regarding the technical standard specifications to explain his analysis, and documents that show that 5G technology is used in India.
14.1 Besides, PW-3 has also filed log files, which as per the plaintiffs, are not additional documents. On the other hand, as per the defendants, the same are additional documents, having been filed for the first time along with Evidence Affidavit of PW-3.
14.2 During the course of arguments, it was submitted that the plaintiffs are only relying upon the following documents from the log files, which have been filed along with the Evidence Affidavit of PW-3:
i. TC_7_1_1_5_1_20211122_143521 – With Details.html
ii. TC_7_1_1_5_1_20211122_143521 – With Details.txt
iii. TC_7_1_1_5_2_20211122_143653 – With Details.html
iv. TC_7_1_1_5_2_20211122_143653 – With Details.txt
v. TC_7_1_1_5_3_20211122_143801 – With Details.html
vi. TC_7_1_1_5_3_20211122_143801 – With Details.txt
vii. TC_7_1_1_5_4_20211122_143911 – With Details.html
viii. TC_7_1_1_5_4_20211122_143911 – With Details.txt
ix. TC_7_1_1_5_5_20211122_143523 – With Details.html
x. TC_7_1_1_5_5_20211122_143523 – With Details.txt
14.3 As per the defendants, the CD filed by the plaintiffs on 24th December, 2021, at the time of filing of the suit, contained only one hundred twelve files. The CD served upon the defendants in the year 2021 also contains a total of one hundred twelve files. Whereas, a total of three hundred thirty eight files have been submitted with the Evidence Affidavit of PW-3.
14.4 Thus, in order to adjudicate upon the issue with regard to the documents filed in the CD in 2021 and to assess whether the documents filed in 2024 pertaining to the log files, filed along with Evidence Affidavit of PW-3, are additional documents, as contended by the defendants, this Court directed both the parties to carry out a joint inspection in the presence of the Technical Expert of this Court.
14.5 Upon joint inspection by the parties, screenshots of the log files as reflected in the CD filed in 2021 with the plaint, and CD containing log files filed along with the Evidence Affidavit of PW-3, were shown to the Court. From the perusal of the screenshots, as produced before this Court, it emerges that only summary of log files in some cases, were filed at the time of filing the documents with the plaint in December, 2021. However, along with the Evidence Affidavit of PW-3, full log files have been filed. The table showing the log files, as available in the CD filed with the plaint in December, 2021 and the log files, filed along with the Evidence Affidavit of PW-3, on the basis of the inspection of the log files carried out by the parties jointly, is as follows:
Sl. No.
Log Files as filed in the CD along with the plaint in December, 2021
Log Files as filed in the CD along with the Evidence Affidavit of PW-3 in September, 2024
1.
i. TC_7_1_1_5_1_20211122_143521.html
ii. TC_7_1_1_5_1_20211122_143521.txt
i. TC_7_1_1_5_1_20211122_143521-with details
ii. TC_7_1_1_5_1_20211122_143521-with details
iii. TC_7_1_1_5_1_20211122_143521
iv. TC_7_1_1_5_1_20211122_143521
2.
i. TC_7_1_1_5_2_20211122_143653.html
ii. TC_7_1_1_5_2_20211122_143653.txt
i. TC_7_1_1_5_2_20211122_143653-with details
ii. TC_7_1_1_5_2_20211122_143653-with details
iii. TC_7_1_1_5_2_20211122_143653
iv. TC_7_1_1_5_2_20211122_143653
3.
i. TC_7_1_1_5_3_20211122_143801.html
ii. TC_7_1_1_5_3_20211122_143801.txt
i. TC_7_1_1_5_3_20211122_143801-with details
ii. TC_7_1_1_5_3_20211122_143801-with details
iii. TC_7_1_1_5_3_20211122_143801
iv. TC_7_1_1_5_3_20211122_143801
4.
i. TC_7_1_1_5_4_20211122_143911.html
ii. TC_7_1_1_5_4_20211122_143911.txt
i. TC_7_1_1_5_4_20211122_143911-with details
ii. TC_7_1_1_5_4_20211122_143911-with details
iii. TC_7_1_1_5_4_20211122_143911
iv. TC_7_1_1_5_4_20211122_143911
5.
i. TC_7_1_1_5_5_20211122_144523.html
ii. TC_7_1_1_5_5_20211122_144523.txt
i. TC_7_1_1_5_5_20211122_144523-with details
ii. TC_7_1_1_5_5_20211122_144523-with details
iii. TC_7_1_1_5_5_20211122_144523
iv. TC_7_1_1_5_5_20211122_144523
14.6 The plaintiffs sought to explain this discrepancy by stating that the plaintiffs legal representative had burnt all the log files on a CD and had filed the CD on 24th December, 2021. Due to technical glitches unknown to the plaintiffs and to their counsel, some data may not have transferred completely or may have got corrupted.
14.7 The Managing Associate working with the law firm representing the plaintiffs, who shared the log files with the IT team of the law firm for filing in this Court along with the plaint in December, 2021, filed an affidavit to the following effect:
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1. I state that I am counsel of the Plaintiffs and well-versed with the facts of this case. I was working as a Senior Associate, Anand and Anand, representing the Plaintiff in the present proceedings at the time of filing of the present proceedings before the Hon’ble High Court of Delhi.
2. I state that I am also technically qualified with a degree BSc (H) in Computer Science from Indraprastha College for Women.
3. I state that I received the log files relating to the testing of devices from DEKRA via email dated 15th November, 2021 and 29th November, 2021. Due to the large size of the log files, the log files were shared with me using Microsoft SharePoint.
4. I state that I downloaded the said log files on my computer in 2021. These files are still on my computer in original form.
5. I state that at that time, I created a third-party file transfer link using ‘WeTransfer’ to share the log files with the IT team of Anand and Anand to create CDs for filing in the present suit on 24th December 2021. The said CDs were then filed in the present proceedings on 24th December 2021.
6. I state that the reason why CDs were used to file the data because the High Court of New Delhi discouraged the filing of data on Pen Drives due to security reasons.
7. In September 2024, I say that the Plaintiff served its evidence by way of three evidence affidavits and exhibits on 28th September 2024 to the Defendants and local commissioner and filed the same before the Hon’ble Court on 30th September 2024.
8. I state that the log files were presented to the Defendants through a Microsoft OneDrive link on 28th September 2024.
9. I state that the Defendants took an objection that there were numerous documents that have been filed for the first time on 30th September 2024.
10. I state that I inspected the court record on 3rd October 2024 and found out that while the folders that were meant to contain the log files on the CD are present, some of the log files are not present on the CD.
11. I state that the Plaintiffs inspection of the CD on the Court record revealed that a technical glitch or error due to factors unknown to the Plaintiffs or their counsel, and some data may not have been transferred or may have got corrupted.
12. I confirm that while preparing affidavit of PW3, no new log files have been added either by the witness or by me over and above what was filed for the first time in December 2021.
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14.8 The aforesaid Managing Associate also appeared before this Court and categorically submitted that she had downloaded and transferred all the log files for the purposes of filing before this Court along with the plaint in December, 2021. Since the file numbers are identical, there was some misunderstanding and she was of the belief that all the files had been transferred. The intention was to transfer all the log files for filing before this Court at the time of filing of the plaint. It was only during the course of inspection, that it transpired that all the files were not on the Court record at the time of filing the log files with the plaint in December, 2021.
14.9 Considering the aforesaid affidavit and submissions made on behalf of the plaintiffs, it is manifest that the plaintiff had set out to file full log files at the time of filing the documents along with the plaint. However, due to bonafide belief and misunderstanding, considering the fact that the file numbers were identical, except for the suffix of the title of the documents, all the log files were not transferred for the purpose of filing along with the plaint. This Court accepts the explanation furnished by the plaintiffs that due to technical glitches, the data was not transferred completely, which fact was discovered only now at the time of inspection of Court file. The plaintiffs, bonafidely from their end, had transferred and filed all the data of the log files, which has been discovered only now to have not been filed in a complete manner.
14.10 As we traverse through technological developments and use technology on day to day basis, we must also accept the challenges and restrictions which the use of the technology may pose. This Court cannot be oblivious to the circumstance of technological failure and collapse, and has to give latitude, in appropriate cases. In the peculiar facts of the case, it is manifest that the file numbers of the log files, containing only the summaries that had been filed along with the plaint, are the same, as that of the file numbers of the log files containing the details, which, have been filed along with the Evidence Affidavit of PW-3. Thus, while the plaintiffs intended to file the complete log files, given the same number of the files, when the transfer of complete files did not take place at the time of initial filing of the log files with the plaint, the same was not discovered by the plaintiffs.
14.11 The additional documents which are the detail documents of the log files, summaries of which had already been filed with the plaint, are aligned with the documents already on record. The said additional documents do not set up a new or a contrary case.
14.12 This Court also takes note of the fact that the summaries of the log files had been filed along with the plaint. The log files were analysed by the plaintiffs Technical Expert, PW-3 and his analysis was placed on record vide index dated 24th December, 2021 and 31st January, 2022. The defendants Technical Expert, Dr. Zhi Ding, DW-3, has filed his own analysis in the form of technical report dated 15th February, 2022. At several places in his report, he has addressed these log files and has rebutted the plaintiffs Technical Experts reliance on them, in the following manner:
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110. The Test log summary submitted by Dr. Vojcic with respect to IN910 (related to 3GPP TS 34.123-1 V15.4.0, § 7.1.6.3.1 and § 7.1.6.3.2) spans a total of 6 pages. Refer to Pages 692-697 of Exhibit 22 submitted by IDC with Dr. Vojcics Affidavit. The test log and test log summary clearly fail to show that the devices under test implement Claim 1 elements (1c)(1d) or Claim 16 elements (16c)(16d). The test log only shows some limited activities by the UE but does not provide information to show that each and every feature of Claim 1 is implemented by the Tested Devices (as asserted on Page 692 of IDCs EXHIBIT NO. 22 submitted with Dr. Vojcics Affidavit in highlighted text):
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649. I now analyze the full test log summary submitted by IDC as Exhibit 21 of Dr. Vojcics report. Dr. Vojcic noted that the Test log summary submitted by IDC with respect to IN673 for 5G is relevant to 3GPP TS 38.523-1 V15.4.0, §7.1.1.1.5.4. Exhibit 21 spans a total of 4 pages. Refer to Pages 688-691 of Exhibit 21 submitted by the IDC with Dr. Vojcics Affidavit. The test log and test log summary clearly fail to show that the devices under test implement Claim 1 elements (1d)(1e) or Claim 9 elements (9d)(9e). The test log only shows some limited activities by the UE but does not provide information to show that each and every feature of Claim 1 is implemented by the Tested Devices (as asserted on Page 688 of IDCs EXHIBIT NO. 21 submitted with Dr. Vojcics Affidavit):
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497. I begin by reviewing the 1st portion of the 5G test logs of One Plus 8 with respect to Section 7.1.1.5.3, on pages 680-682 of Exhibit 20 submitted with the Plaint, and the 1st portion of the 5G test logs of OPPO A74 5G with respect to Section 7.1.1.5.3, on pages 3-5 of Exhibit 25. As seen from the fully captured pages below, the first portion of the test logs excerpted by Dr. Vojcic only shows a downlink DL_DCCH_MESSAGE rrcReconfiguration, i.e., the DRX configuration information in step (1a) of Claim 1.Refer to Exhibit 20, page 680, Volume III, Documents filed with Plaint and Exhibit 26 (page3):
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496. I shall do (sic) a thorough analysis of these test logs with respect to IDC cited Section 7.1.1.5.3 and Section 7.1.1.5.4 of 3GPP Conformance Test Specification 3GPP TS 38.523-1 S226.6.0 (2020-12). Refer to pages 775-803 of Exhibit 24 submitted with the Plaint (Volume II).
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(Emphasis Supplied)
14.13 Perusal of the aforesaid report of DW-3, shows that the same makes reference to test logs and not merely log summaries. Further, as submitted by learned Senior Counsel for the plaintiffs, the defendants never pointed out that they did not have the full log files. Therefore, the fact of complete log files not being available on the Court record was not known to the plaintiffs, till the inspection of the Court record, upon the objection raised by the defendants in this regard.
14.14 Holding that where the plaintiff was required to file voluminous documents and inadvertently misses out certain documents, which are in line with the documents already filed, would be a reasonable cause permitting the plaintiff to file additional documents, this Court in the case of Hassad Food Company Q.S.C Versus Bank of India and Others, 2019 SCC OnLine Del 10647, has held as follows:
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13. Perusal of Order XI as noted above reveals that the plaintiff is bound to file all documents in its power, possession, control or custody with the plaint and in case of urgent filing of a suit if some additional documents are to be filed under sub-rule (1) of Rule 1 of Order XI, the plaintiff may seek leave of the Court to rely on additional documents which additional documents are required to be filed within 30 days of filing of the suit. Under sub-rule (5) of Rule 1 of Order XI, the plaintiff shall not be allowed to rely on documents which were in the plaintiff’s power, possession, control or custody and not disclosed along with the plaint or within the extended period save and except by leave of the Court which leave can be granted only if the plaintiff establishes reasonable cause for non-disclosure along with the plaint. The language used in the sub-rule (5) is that the plaintiff is required to show a reasonable cause and not a sufficient cause as is ordinarily provided in other provisions.
14. While dealing with Order XIII Rule 2 CPC wherein the words used are: unless good cause is shown, the Supreme Court in the decision reported as (2002) 1 SCC 535 Madanlal v. Shyamlal, noted the distinction between good cause and sufficient cause and held that good cause requires a lower degree of proof as compared to sufficient cause and thus the power under Order XIII Rule 2 CPC should be exercised liberally. Sub-Rule (5) of Rule 1 of Order XI of the Commercial Courts Act, 2015 uses the phrase reasonable cause which would require even a lower degree of proof as compared to good cause.
15. Thus it is to be seen in the present case whether the plaintiff who is required to file voluminous documents inadvertently misses out certain documents which are in line with the documents already filed and further the case of the plaintiffs and does not set up of a contrary case, would be a reasonable cause permitting the plaintiffs to file additional documents at this stage when pleadings are not complete as yet for the reason the replications of the plaintiffs have not been taken on record as yet. The plaintiffs along with suit has filed more than 2000 documents, the nature of the suit is commercial wherein the plaintiff No. 1 furnished corporate guarantee and plaintiff No. 2 invested money with Bush Foods pursuant to the representations of the BOI consortium who are the defendants. By these additional documents, the plaintiffs want to further demonstrate the conduct of the defendant banks which would show correspondence between Bush Foods and defendant Banks and that to the knowledge of the defendant banks the financial condition of Bush Foods was not healthy and the said facts were concealed from the plaintiffs rather representations were made that Bush Foods have assets justifying the investment inducing plaintiff No. 1 which was made to execute a corporate guarantee and plaintiff No. 2 to invest the money. The plaintiffs have thus made out a case of egregious fraud against the defendant banks.
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18. In the pleas taken in the present application the defendants neither dispute the relevancy of the documents nor that the documents sought to be filed do not relate to them and the only objection taken is that the plaintiffs cannot be allowed to file the documents at the belated stage. As noted above in the present suit the pleadings are not complete as yet as the replications are yet to be taken on record and hence it cannot be said that the plaintiffs have filed the present application so belatedly that it cannot be allowed. Further the plaintiffs have very fairly taken the plea of administrative oversight which can occur when the number of documents is voluminous. Thus the plaintiffs have made out a reasonable cause for not filing the documents with the plaint.
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(Emphasis Supplied)
14.15 Thus, it is manifest that the additional documents containing the complete log files, are in line with the documents containing the summary of the log files, already on record. The said documents are not contrary to the pleadings of the plaintiffs. The plaintiffs have given reasonable and plausible explanation for not filing the said documents earlier. The plaintiffs have established a reasonable cause for non-disclosure along with the plaint.
14.16 Recognizing the peculiar challenges that use of the technology may evince, this Court allowed filing of additional document and placing on record a video in the form of a pen drive, after the MP4 link of the video expired by efflux of time. Further, it was categorically held that the veracity, genuineness, admissibility or relevance in evidence of the additional documents, shall be considered at the appropriate stage. Thus, in the case of Jumeirah Beach Resort LLC Versus Designarch Consultants Private Limited and Another, 2023 SCC OnLine Del 2791, a Coordinate Bench of this Court, has held as follows:
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21. ………….
(i) An MP4 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.
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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 MP4 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 MP4 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 MP4 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.
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(Emphasis Supplied)
15. As regards the additional documents sought to be produced/relied upon, which are discovered subsequent to the filing of the plaint, Supreme Court has held categorically that the rigour of establishing the reasonable cause in non-disclosure along with the plaint, may not arise in such cases. Thus, in the case of Sudhir Kumar alias S. Balian Verus Vinay Kumar G.B., 2021 SCC OnLine SC 734, Supreme Court has held as follows:
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9.4. However, the additional documents can be permitted to be bought on record with the leave of the court as provided in Order 11 Rule 1(4). Order 11 Rule 1(4) provides that in case of urgent filings, the plaintiff may seek leave to rely on additional documents as part of the above declaration on oath [as provided under Order 11 Rule 1(3)] and subject to grant of such leave by court, the plaintiff shall file such additional documents in court, within thirty days of filing the suit, along with a declaration on oath that the plaintiff has produced all documents in its power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by the plaintiff and that the plaintiff does not have any other documents, in its power, possession, control or custody.
9.5. Order 11 Rule 1(5) further provides that the plaintiff shall not be allowed to rely on documents, which were in the plaintiff’s power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint. Therefore on combined reading of Order 11 Rule 1(4) read with Order 11 Rule 1(5), it emerges that (i) in case of urgent filings the plaintiff may seek leave to rely on additional documents; (ii) within thirty days of filing of the suit; (iii) making out a reasonable cause for non-disclosure along with plaint.
9.6. Therefore a further thirty days’ time is provided to the plaintiff to place on record or file such additional documents in court and a declaration on oath is required to be filed by the plaintiff as was required as per Order 11 Rule 1(3) if for any reasonable cause for non-disclosure along with the plaint, the documents, which were in the plaintiff’s power, possession, control or custody and not disclosed along with plaint. Therefore the plaintiff has to satisfy and establish a reasonable cause for non-disclosure along with plaint. However, at the same time, the requirement of establishing the reasonable cause for non-disclosure of the documents along with the plaint shall not be applicable if it is averred and it is the case of the plaintiff that those documents have been found subsequently and in fact were not in the plaintiff’s power, possession, control or custody at the time when the plaint was filed. Therefore Order 11 Rule 1(4) and Order 11 Rule 1(5) applicable to the commercial suit shall be applicable only with respect to the documents which were in plaintiff’s power, possession, control or custody and not disclosed along with plaint. Therefore, the rigour of establishing the reasonable cause in non-disclosure along with plaint may not arise in the case where the additional documents sought to be produced/relied upon are discovered subsequent to the filing of the plaint.
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10.3. Even the reason given by the learned Commercial Court that the invoices being suspicious and therefore not granting leave to produce the said invoices cannot be accepted. At the stage of granting leave to place on record additional documents the court is not required to consider the genuineness of the documents/additional documents, the stage at which genuineness of the documents to be considered during the trial and/or even at the stage of deciding the application under Order 39 Rule 1 that too while considering prima facie case. Therefore, the learned Commercial Court ought to have granted leave to the plaintiff to rely on/produce the invoices as mentioned in the application as additional documents.
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(Emphasis Supplied)
16. While allowing additional documents to be taken on record, the Supreme Court in the case of Sugandhi and Another Versus P. Rajkumar, 2020 SCC OnLine SC 870, held that if procedural violation does not cause serious prejudice to the adversary party, Courts must lean towards doing substantial justice, rather than relying upon procedural and technical violation. Thus, it was held as follows:
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9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).
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(Emphasis Supplied)
17. This Court notes that the present case seeks adjudication of issues concerning infringement of Standard Essential Patents (SEPs), assessment of parties FRAND obligations, damages, etc. The present suit has been filed by the plaintiffs claiming infringement of five of their SEPs, i.e., IN 262910, IN 295912, IN 313036, IN 320182 and IN 319673, by devices of the defendants. The plaintiffs have claimed a permanent injunction against the defendants, seeking a restraint on the manufacture and sale of the defendants mobile devices that are compliant with 3G, 4G and 5G standards. The plaintiffs have sought damages as well as declaration that the plaintiffs have complied with their obligations to negotiate with the defendants in a FRAND manner for use of their 3G, 4G and 5G SEPs by the defendants. The defendants have also preferred a counter claim against these patents.
18. Thus, FRAND issues require analysis of third party PLAs by Economic Experts of both the parties. This economic analysis is supported by market research data, which is unique to each third party covered by several PLAs. Hence, the additional documents filed with the Evidence Affidavit of the Economic Expert are justifiable, and reasonable cause has been shown for filing the same.
19. Similarly, issues concerning parties conduct and willingness for license for SEP, require assessment of inter-party negotiations. Offers and counter offers are exchanged between the parties even after the litigation is initiated. Thus, reasonable cause has been shown for filing of such documents, and other documents with the Evidence Affidavit of PW-2.
20. Likewise, essentiality and infringement of patents, requires a technical explanation of the technology. Thus, the technical expert has rightly filed documents supporting his independent analysis. The justification and reasonable cause for filing the documents along with the Evidence Affidavit of PW-3, has been established by the plaintiffs.
21. Considering the nature of the present suit, external experts are involved both for technology and financial analysis. The documents filed by the experts have been filed to support their own analysis and conclusions. This Court is required to adjudicate on complicated issues regarding contentions of the plaintiffs qua infringement of SEPs by the devices of the defendants, as well as assessment of parties FRAND obligations, for which, there is need for an expert opinion.
22. Holding that the relevant facts supporting the expert opinion have to be seen, emphasising on the data, on the basis of which opinion is formed, Supreme Court in the case of Ramesh Chandra Agrawal Versus Regency Hospital Limited and Others, 2009 SCC OnLine SC 1625, has held as follows:
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20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee [(2009) 9 SCC 221 : (2009) 10 Scale 675] , SCC p. 249, para 34.)
21. In State of Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : AIR 2000 SC 1691] , it has been laid down that without examining the expert as a witness in court, no reliance can be placed on an opinion alone. In this regard, it has been observed in State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14] that no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him.
22. In the article Relevancy of Expert’s Opinion it has been opined that the value of expert opinion rests on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be crosschecked. Therefore, the emphasis has been on the data on the basis of which opinion is formed. The same is clear from the following inference:
Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.
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(Emphasis Supplied)
23. The judgments relied upon by the defendants, are clearly distinguishable, and do not apply to the facts and circumstances of the present case.
23.1 As regards the judgment in the case of F. Hoffman-La Roche Limited & Anr. Versus Natco Pharma Limited, 2017 SCC OnLine Del 7126, additional documents were allowed to be taken on record, however, evidence beyond pleadings were rejected. That is not the case in the present matter, as no additional documents have been filed, which are beyond the pleadings.
23.2 As regards the judgement in the case of Zee Entertainment Enterprises Ltd. Versus Saregama India Ltd., MANU/DE/3096/2019, the additional documents were not allowed to be taken on record on the ground that inadvertent errors do not amount to a reasonable cause. However, the said judgment is distinguishable, as in the present case, the plaintiffs have established a reasonable cause for non-disclosure.
23.3 As regards the judgment in the case of CEC-CICI JV and Others Versus Oriental Insurance Co. Ltd., 2023 SCC OnLine Del 2797, the additional documents were rejected in the said case, as it was held that no reasonable cause was shown. In the present case, the plaintiffs have established a reasonable cause.
23.4 Likewise, the judgment in the case of Entertainment Network (India) Ltd. Versus HT Media Limited, 2022 SCC OnLine Del 2636, is not applicable to the facts and circumstances of the present case. In the said judgment, it was held that the defendant had not been able to justify the filing of the additional documents, after the plaintiffs evidence had been concluded. The documents sought to be brought on record were in the possession of the defendants prior to commencement of the plaintiffs evidence. Thus, it was held that the trial cannot be interdicted at that stage. However, in the present case, the position is totally different. The plaintiffs have established reasonable cause for filing of the additional documents.
24. As per the settled law, the relevancy and admissibility of the additional documents filed by the plaintiffs witnesses would be a subject matter of trial.
25. At the stage of considering the filing of additional documents, the Court is only required to examine whether there is reasonable cause for the documents not having been filed along with the plaint. The evidentiary or other value of the document vis-a-vis the controversy in issue in the plaint, is a consideration alien to Order XI Rule 1(5), CPC. (See: Md. Islamuddin Versus S.S. Kapoor, 2022 SCC OnLine Del 3608).
26. Further, Division Bench of this Court in the case of Agva Health Care Private Limited and Others Versus Agfa-Gevaert NV and Another, 2023 SCC OnLine Del 7914, has held as follows:
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16. At the stage of granting leave to place on record additional documents, the Court is not required to consider the genuineness of the documents/additional documents, the stage at which the genuineness of the documents is to be considered is during the trial.
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(Emphasis Supplied)
27. Likewise, holding that unless there is an allegation of egregious nature against a particular document, usually documents filed by witnesses, which are broadly within pleadings, ought to be either exhibited or marked at the time when the same are being tendered, after recording all the objections raised by the parties. The objections so raised, should not de-rail the trial of the suit in any manner. Thus, in the case of Xerox Corporation and Another Versus P.K. Khansaheb and Another, 2018 SCC OnLine Del 12863, this Court has held as follows:
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12. It is however noticed that in a large number of affidavits, which are filed and tendered as examination-in-chief, documents are attached with the said affidavits. The said documents, so long as they are within the pleadings or relate to developments subsequent to the filing of the suit or at the stage of admission/denial, ought not to be refused even if filed with the affidavit-in-evidence, in as much as at the time of preparation of evidence, it is usual for witnesses to trace out documents in support of their testimony and attach the same. This happens not just with expert witnesses but also with witnesses who appear on behalf of the parties. The reason for this is not far to seek. The CPC, though prescribes a schedule for filing of documents, the consistent view of the Supreme Court and this Court has been that if the documents are relevant, the same are not rejected. This can be seen from a perusal of the following judgments, Bipin Shantilal Panchal v. State of Gujarat (supra), where the Supreme Court observed as under:
13. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the Appellate or Revisional Court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the Appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves? Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it-clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).
15. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is recanvassed an reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery of expenses.
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14. What is the procedure to be followed in case documents are attached with the affidavit-in-evidence? Is the Joint Registrar required to place the case before the Court before recording the examination-in-chief when the affidavit-in-evidence is filed with documents? As per the procedure, examination-in-chief and exhibit marking is required to be done when the witness is present. The exhibition of documents which are filed with the affidavit-in-evidence is a process which is performed in front of the Joint Registrar/Local Commissioner and if in each and every case where the affidavit is filed with documents, the matter is placed before the Court, it would in effect mean that no evidence can be recorded on the said date. The purpose of recordal of evidence by affidavit and expeditious recordal there to would completely be defeated. …..
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(Emphasis Supplied)
28. Considering the detailed discussion hereinabove, it is held that the plaintiffs have demonstrated reasonable cause for filing additional documents with the Evidence Affidavits of their witnesses, as per Order XI Rule 1(5) of the CPC as amended by the Commercial Courts Act, 2015.
29. Accordingly, the additional documents filed along with Evidence Affidavits of PW-1, PW-2 and PW-3, are taken on record.
30. Consequently, IA Nos. 41356/2024, 41357/2024 and 41358/2024 in CS(COMM) 692/2022, filed by the plaintiffs, are allowed. IA No. 41359/2024 in CS(COMM) 692/2022, filed by the defendants, is dismissed.
CS(COMM) 692/2021
CS(COMM) 707/2021
31. List on 20th January, 2025.
MINI PUSHKARNA, J
OCTOBER 14, 2024
Ak/Kr
CS(COMM) 692/2021 & CS(COMM) 707/2021 Page 1 of 35