Interim Order 4

Order Details: COPY OF ORDER
Pdf Text: BEFORE THE COURT OF SH. SURINDER S. RATHI, DISTRICT JUDGE
(COMM.)-03 SHAHDARA, KARKARDOOMA, DELHI.
CS (COMM) 247/24
M/S JAIN DIAGNOSTIC PRIVATE LIMITED Vs. VELMED HOSPITAL
05.07.2024
Present: Ms. Maya Rani, Ld. Counsel for plaintiff.
None for defendant.
Defendant was served in this case by way of speed post &
Courier on 10.05.2024. As per report of Ahlmad, no written statement has
been filed within the period of 30 days i.e. by 10.06.2023. Even today, neither
WS nor application for seeking extension of time to file WS is filed by the
defendant. Accordingly, the right of the defendant for filing written statement
stands closed and defence is struck off.
In so far as 120 days is yet to elapse, defendant is at liberty to
move application for condonation of delay for filing of WS.
Out of the pleadings, following notional issues are being framed:
NOTIONAL ISSUES:
1. Whether the plaintiff is entitled for recovery of Rs. 6,65,840/-
along with interest @ 24% p.a.? OPP
2. Relief
No other issue arises out of the pleadings or is pressed.
Parties are directed to file list of witnesses, if any, within 15 days and
get approved from the Court before examining 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) & (o) CPC. Evidence in this
case shall be recorded before Ld. LC with effect from 19.07.2024.
CS (COMM) 247/24
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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 District Judge 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.
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.
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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 alongwith 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 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.
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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.
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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.
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.10,000/- 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.
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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.
Ms. Neelam Malik, Advocate, Mobile No. 7303296156, e-mail :
neelam.malik8512@gmail.com Add. : F-516, Karkardooma Court, is hereby
appointed as LC and she shall file the report by NDOH.
Copy of order be given dasti to the parties.
Copy of order be sent to Ld. LC.
List the matter for final arguments on 09.08.2024.
(SURINDER S. RATHI)
District Judge,
Commercial Court -03
Shahdara District, KKD
Delhi/05.07.2024
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