Order 2

Order Details: COPY OF ORDER
Pdf Text: BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-11 CENTRAL, THC, DELHI
CS (COMM) No. 1100/2024
M/s Shiva Milk Foods Vs. Asha Ram and Sons
19.12.2024
Present: Ms. Ritunjaya Tiwari, Ld. Counsel for plaintiff through VC
Sh. Sachin Kumar Jain, Ld. Counsel for defendant.
Ld. Counsel for defendant submits that his client was served with
summons of the suit on 07.11.2024 however as per tracking report defendant was
served by way of registered post on 11.11.2024. WS was filed on 06.12.2024.
Spare hard copy is placed on record for collection by Ld. Counsel for plaintiff.
Soft copy already supplied.
Perusal of the WS shows that it does not carry any verification of the
pleadings as mandated under Order 6 Rule 15 CPC.
Perusing the suit following observations are made:
i. Plaintiff has sought Rs. 5 lakhs as litigation charges and no court
fees paid thereupon.
ii. Plaintiff has not complied Order 7 Rule 2 CPC.
iii. Plaintiff has not complied Order 7 Rule 2A CPC as applicable to
Commercial Courts.
iv. Plaintiff is not seeking any pre-suit interest.
Replication, if any, may be filed.
Out of the pleadings following issues are identified:
Issues:
i. Whether plaintiff is entitled to recovery of Rs.56,00,052/- alongwith 18%
interest p.a.? OPP
ii. Whether plaintiff is entitled to litigation cost of Rs. 5 lakhs? OPP
Page 1 of 6
CS (COMM) No. 1100/2024
M/s Shiva Milk Foods Vs. Asha Ram and Sons
-- 1 of 6 --
iii. Relief.
No other issue either arises or is pressed.
Parties to file list of witnesses under Order 16 Rule 1 CPC, if any,
within 15 days and get approved from the Court before examination of the
witnesses.
To achieve timely and expedient disposal on this case, a decision is
arrived at for recording of evidence by way of Court Commissioner as provided
under Order 18 Rule 4 CPC and Order 15A Rule 6(l) and (o) CPC. Evidence
shall be recorded before Ld. LC Sh. Kunal Kumar, Advocate with effect from
22.01.2025. The evidence shall be recorded as per under-mentioned Protocol
drafted for this purpose.
“Protocol for Recording of Evidence before Court Commissioner appointed by
District Judge, Commercial Court, 2022”
Part – 1
Preliminary
1. Short title- This Protocol is titled “Protocol for Recording of Evidence before Court Commissioner appointed
by Commercial Court 2022.”
2. Statutory Provision- This protocol is prepared as per Order 18 Rule 4 CPC and Order 15A Rule 6(l) CPC as
applicable to Commercial Court.
3. Court- Whenever the term ‘Court’ appears in this Protocol it should refer to Commercial Court as defined under
Section 2(b) of Commercial Court Act 2015.
Part - 2
Preparation for Assignment
4. Recording of evidence in Commercial Cases- Recording of evidence in Commercial Cases may be carried out
before the Court Commissioner.
Explanation: For reasons to be recorded, Court may retain the case for recording of evidence before the Court.
5. Appointment of Court Commissioner- As per the Protocol, on the first Case Management Hearing when the
issues are identified, the Court may pass an order for appointment of Court Commissioner.
6. Copy of order be shared with parties and Court Commissioner- Copy of the order of framing of issues,
appointment of Court Commissioner and the schedule of recording of evidence shall be supplied to the parties as
well as the Court Commissioner.
Page 2 of 6
CS (COMM) No. 1100/2024
M/s Shiva Milk Foods Vs. Asha Ram and Sons
-- 2 of 6 --
Part – 3
Recording of Evidence
7. Filing of list of witnesses- Both sides shall file list of witnesses preferably within one week but not later than 15
days of identification of issues before the Court while sharing an advanced copy thereof with the opposite party.
8. Order of assignment of Case to the Court Commissioner- While assigning the case, following aspects shall
be complied :
i. Schedule of evidence- Recording of evidence shall start within two weeks of identification of issues.
Evidence shall continue on day to day basis, till conclusion. Any alteration in schedule for recording of
evidence, if needed, shall be decided by the Court Commissioner as per convenience of all concerned, as
far as possible. However, entire evidence shall be concluded within Eight weeks of initiation.
ii. Judicial File- Judicial file shall not be sent or summoned for the purpose of recording of evidence by the
Court Commissioner.
iii. Examination-in-Chief- An advance copy of examination in chief by way of affidavit shall be supplied to
opposite party preferably one week in advance. However, no adjournment shall be granted in case of
non-supply of advance copy.
iv. Production of documents for cross-examination- In case the opposite side is desirous of production of
any document by the witness or any other entity for the purpose of cross-examination, an application
requesting the same shall be moved well in advance before the Court.
Part – 4
Duty of Court Commissioner
9. Recording of evidence by the Court Commissioner-
i. Place and Time- Court Commissioner shall record evidence either in Lawyer’s chamber, or
Judges/Bar Library, Court Room or any other public place within the Court Complex as mutually
agreed by all concerned. Evidence shall be recorded between 10.00 AM to 5.00 PM. It can carry on
beyond 5.00 PM as well in case both parties agree. It can be recorded even on a holiday if all the
stakeholders are comfortable and agree to the same.
ii. Chronology of recording- Court Commissioner shall proceed to record the examination by first
recording the deposition of litigating party before examining additional summoned witnesses.
iii. Oath to witnesses- Court Commissioner shall administer oath to the witnesses under examination as a
delegatee of the Court as per Oaths Act, 1969.
iv. Recording of evidence- The evidence shall be preferably typed on a computer but can also be
recorded by hand neatly.
v. Time frame- Court Commissioner shall conclude the recording of evidence, as early as possible, but
not later than eight weeks of assignment of a case. In case, for any reason the parties are unable to
adhere to the time schedule, extension can be sought from the Court.
vi. Comfortable sitting space- Witnesses and their Counsel shall be provided comfortable sitting space
by the Court Commissioner.
vii. Exhibition of documents- Court Commissioner shall exhibit all the documents sought to be proved by
a party on record. In case of any objection to exhibition of the documents by either side, the objection
shall be recorded in some detail and left open with an assurance that mere marking of such exhibits
will not be treated as conclusive proof thereof and that admissibility of such document shall be decided
by the referral Court at final stage.
viii. Original documents to be retained by parties- Court Commissioner shall make an observation in the
record of evidence of all original documents produced and shall sign the exhibits with an endorsement
OSR (original seen and returned) wherever necessary. If a party has filed original documents along
with pleadings in Court, the same can be taken back as per rules for the purpose of recording of
evidence before the Court Commissioner. Original documents be submitted with the Court at the time
of final arguments.
ix. Language- Recording of evidence shall preferably be carried out in English or Court language, as the
case may be, unless requested by the parties otherwise.
x. Adjournments- Once started, the cross-examination shall preferably concluded on the same day or
Page 3 of 6
CS (COMM) No. 1100/2024
M/s Shiva Milk Foods Vs. Asha Ram and Sons
-- 3 of 6 --
continue on day-to-day basis. In case of any hardship viz. ill health etc. the case can be deferred but
preferably for a day or two but not later than a week.
In case an evidence schedule is fixed and adjournment is sought by the opposite side, i.e the side other
than who is leading evidence, without 24 hour advance notice.
Explanation: In case a witness scheduled to be examined or under examination is reported to be
unwell or unavailable, the party leading the evidence shall produce the next witness in line in the list
for recording of evidence.
xi. Recording of objections- All the objections raised during cross-examination/reexamination shall be
recorded in the deposition under title objections and shall be left open for the decision of the Court at
the stage of final arguments. Witness shall not refuse to answer the question asked.
xii. Questions to be allowed- In case Court Commissioner finds any question not related to the fact and
issue, he shall record his objection but shall allow the question to be put and witness must answer.
xiii. No third person intervention- Court Commissioner shall ensure that the witness is not assisted by his
Counsel or any other person while under examination in answering the questions.
xiv. Recording of demeanour of witness- Court Commissioner shall record the demeanour of the witness
wherever it is found pertinent and necessary for sharing with the Court.
xv. Copy of evidence- All parties shall be provided uncertified electronic/hard copy of the evidence
recorded, free of cost by Court Commissioner.
xvi. Safe keeping of original deposition- Court Commissioner shall keep the original depositions in his
safe custody till such time they are filed in the Court in original upon completion of each witness
individually.
xvii. Miscellaneous proceedings- Court Commissioner shall maintain a miscellaneous proceeding sheet for
each day of work and shall submit it in the Court at the time of submission of final report.
xviii. Hostile Witness- In case a witness is sought to be declared hostile, then Court Commissioner shall
refer both the parties to Court at the earliest and the Court shall decide the issue within three days.
Part – 5
Miscellaneous
10. Summoning of Witness-
i. Summons from Court- In case a litigating party is desirous of summoning a person for deposition or
production of documents, it shall obtain summons from the Court with an endorsement that such
person shall appear before the address of Court Commissioner on scheduled date, time and place.
ii. Diet Money- Diet money shall be paid to such witness by the party desirous of summoning as per
rules.
11. Advisory to Court Commissioner- While recording the evidence on commission, the Court Commissioner
shall ensure the following:
i. Impartial- Court Commissioner shall conduct himself in an impartial way and behave in an
indiscriminate manner while recording of evidence.
ii. Polite- Court Commissioner shall be polite with the witness and other stakeholders while recording
of evidence.
iii. Confidentiality- Court Commissioner shall maintain confidentiality during the whole process.
iv. Keeping professional distance- Court Commissioner shall not solicit professional work from the
parties.
v. Integrity- Court Commissioner shall not accept remuneration or any favour in cash or kind from the
parties over and above the honorarium fixed by the Court.
vi. Non-judgmental- Court Commissioner shall not criticize the professional conduct of lawyers and
litigating parties on their understanding of law.
vii. Punctuality- Court Commissioner shall adhere to time schedules and shall not make excuses like
being engaged in some personal or Court work etc.
Page 4 of 6
CS (COMM) No. 1100/2024
M/s Shiva Milk Foods Vs. Asha Ram and Sons
-- 4 of 6 --
viii. Coordination- In case of any unforeseen circumstances warranting change of dates of hearing, for
his own case or the request of other side, he shall apprise the other side in advance via phone call,
email, SMS, Whatsapp Group etc..
ix. No third party sharing- Court Commissioner shall not allow the deposition to be inspected by any
third party and shall not share a copy thereof with any stranger without permission of the Court.
x. Inspection- Court Commissioner shall allow any party to inspect the recorded proceedings only in
his presence.
xi. Recusal- In case either of the parties or Counsel for the parties are related or closely known to Court
Commissioner, he/she shall recuse self from the case and inform the referral Court.
12. Remuneration of Court Commissioner -
i. Remuneration- In terms of Order 18 Rule 4 of the Code read with Order 15 Rule 2(l) and Rule 2(o)
of the Code, Court Commissioner shall be paid remuneration for the work carried out.
ii. Mode of payment- Such remuneration shall be paid by the party directly for the work carried out by
way of cash, UPI, Bank Transfer, cheque or draft against due receipt.
iii. Cost to parties- Each party shall individually bear the cost incurred in leading its evidence.
iv. Fee to be paid- Remuneration fee for recording of evidence is fixed at Rs.25,000/- per witness.
Court Commissioner shall record the Evidence himself and in case the Stenographer services are
taken it can either be arranged by a litigating party on its own cost or in case the same is arranged by
Court Commissioner, then the actual cost of typing shall be reimbursed by the party to the Court
Commissioner.
v. Litigation Cost- Expenditure incurred in recording of evidence shall be redeemable as cost of
litigation at the end of the suit.
13. Judicial Intervention during recording of evidence-
i. Parties to cooperate- It is expected that both the sides will cooperate with Court Commissioner as
well as with each other in recording of evidence and carry out proceedings in a cordial manner.
ii. Dissolution of hindrances- In case of any conflict resulting into hindrance recording of evidence, it
shall be resolved amicably by the parties at their own level with the active help of the Court
Commissioner.
iii. Court intervention- However, in case of any unforeseen situation requiring judicial intervention,
Court Commissioner shall fix date and time for joint appearance of both sides before the Court for
removal of any such impediment.
14. Miscellaneous Applications-
i. Moving the application- In case either of the parties is desirous of moving any miscellaneous
application viz. amending of pleadings, interim injunction etc. it shall share an advance copy with
the opposite side and reply thereof, if any, shall be filed and shared within seven days.
ii. Date of hearing- Upon receipt of reply, both the sides shall get the application fixed for disposal in
the Court with the help of Reader of the Court and shall not wait till next date fixed for hearing. All
such miscellaneous applications shall be registered, numbered and indexed separately.
iii. Evidence not to be stalled- It is clarified that, unless Court Commissioner is of the view that the
interim application moved by either of the parties is such that evidence cannot be recorded before
its disposal, the recording of PE/DE shall continue unabatedly.
Sh. Kunal Kumar, Advocate, Enrolment No.D/3636/2020, Mobile No.
9958676776, 7669995766, Chamber at: 301, Civil Side, Tis Hazari Courts, Delhi,
Page 5 of 6
CS (COMM) No. 1100/2024
M/s Shiva Milk Foods Vs. Asha Ram and Sons
-- 5 of 6 --
e-mail: advocatekunalkumar@gmail.com is hereby appointed as LC and he shall
file the report by next date of hearing.
Copy of order be given dasti to the parties for compliance.
Copy of order be sent to Ld. LC.
Now to come up for final arguments 19.02.2025.
Next date of hearing is given as per convenience of parties.
(SURINDER S. RATHI)
District Judge
Commercial Court-11
Central District, THC
Delhi/19.12.2024 (A)
Page 6 of 6
CS (COMM) No. 1100/2024
M/s Shiva Milk Foods Vs. Asha Ram and Sons
-- 6 of 6 --