Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1082/18 @ Exh.4 in Suit 7031/2002
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1082 OF 2018
ALONG WITH
ORDER BELOW EXHIBIT4
IN
SUIT NO. 7031 OF 2002
(H.C. SUIT NO. 25 OF 2002)
CNR NO. : MHCC01-003501-2018
M/s. United Chemical Products Limited ...Plaintiff
Versus
M/s. Meen Been Elastomers ...Defendant
Appearance:
Advocate Meit Sampat for Plaintiff.
Advocate N.K.Chaurasia for Defendant.
CORAM :SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.13)
DATE : 26/10/2020
ORAL ORDER
1. Notice of Motion is filed by the plaintiff to grant leave to the
plaintiff to lead evidence by way of video conferencing. The Notice
of Motion is supported by Affidavit of Kizelev Serguei. The plaintiff
company is based in Russia. The suit is filed for recovery of Rs.
7,22,347.68/- with interest at the rate of 21% per annum from the
date of default. The suit is listed for filling the affidavit of evidence
of plaintiff. The officers of the plaintiff do not reside in India. They
are resident of Russia. Therefore, they are not able to appear before
the Court to affirm and adduce other evidence. Hence, prayed to
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allow the Notice of Motion stating that the affidavit of evidence be
taken on record by video conferencing through Skype or Google
Hangouts or any other mode that is convenient or practiced by the
Court.
2. The defendant filed reply and has denied the contents of the
Notice of Motion in toto. The defendant stated that there is no
provision in Code of Civil Procedure, 1908 to record the evidence
through video conferencing. Hence, prayed to reject the Notice of
Motion.
3. Exhibit 4 is an application filed by the plaintiff to take on
record affidavit of evidence stating the same reasons as contended
in the Notice of Motion. The defendant filed reply and objected for
taking on record the evidence affidavit of the plaintiff. The Notice
of Motion and this application is for recording evidence of the
plaintiff through video conferencing.
4. Heard Advocate Sampat for the plaintiff and advocate
Chaurasia for the defendant. Perused the contents of Notice of
Motion, application Exh.4 and reply filed by the defendant
supported by affidavit.
5. The plaintiff company is situated at Russia. The suit is filed
for recovery of amount from the defendant. It is pending since long
only to record the evidence of the plaintiff. The officers of the
plaintiff company are resident of Russia, therefore unable to come
to the Court personally to record the evidence. The contention of
the defendant that through video conferencing the evidence cannot
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be recorded, as there is no such provision under Code of Civil
Procedure, 1908, cannot be accepted. Through the video
conferencing the evidence of persons who are unable to come
before the Court can be recorded.
6. Advocate for plaintiff has relied on authority reported in
Suvarna Vs. Rahul : 2015 (2) Mh.L.J. 801. The said petition is in
respect of family dispute between the parties. There is a Divorce
Petition. The petitioner was unable to come to the Court. The
Hon’ble High Court held that, “the presence of the person can be
obtained physically so also virtually. What is important is that a
person should be seen and be heard and vice versa. It is not
necessary to insist for the physical presence of the witness wheh it
is not possible. In that case, the petitioner was working and
residing at United States of America (U.S.)
7. In the present case also, the plaintiff company is a Russian
company. The officers of the plaintiff company are residents of
Russia. Therefore, for recovery of Rs.7,22,347.68/- it is not viable
for the plaintiff company to keep present the witness in the Court.
The evidence of the witness can be recorded through video
conferencing. It will be uneconomical to ask the plaintiff to keep
his witness present in the Court. Considering the present scenario
of Covid-19 situation also, now a days even hearing/ argument of
the suit is being heard through video conferencing. Therefore, the
objection raised by the defendant is not tenable. The plaintiff
company is allowed to record the evidence/ cross examination of
the witness through video conferencing subject to conditions.
Hence pass the following order :-
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ORDER
1) Notice of Motion No. 1082 of 2018 and Exhibit 4 is
allowed.
2) The witness of the plaintiff is allowed to record his
evidence/ cross examination through Video
Conferencing.
3) The plaintiff company is allowed to record the
evidence through video conferencing subject to
following conditions:-
(i) The video conferencing shall be conducted
in the facilities available in the City Civil
Court, Mumbai.
(ii) The Assistant Registrar (Computer
department) of this Court is appointed as the
Co-ordinator with regard to technical aspects
of video conferencing in India.
(iii) The Indian High Commissioner at Russia
shall nominate a senior officer not below the
rank of Deputy Secretary of India to facilitate
video conferencing. The officer nominated by
the Indian High Commission shall co-ordinate
the video conferencing arrangements in
Russia and shall remain present at the time of
recording of the evidence of the plaintiff’s
witness.
(iv) The officer nominated by the Indian High
Commissioner in terms of the direction at
serial no. (iii) above shall ensure that apart
from his own presence, only counsel for the
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appellant/plaintiff is present at the time of
video conferencing. He shall ensure that no
manner of prompting by word or signs or by
any other mode is permitted.
(v) The officer nominated by the Indian High
Commissioner shall verify the identity of the
witness before commencement of plaintiff’s
witness examination.
(vi) As soon as the identification part is
complete, oath will be administered by the
Assistant Registrar through the media as per
Oaths Act, 1969.
(vii) The cross examination shall be
proceeded without any interruption and
without granting unnecessary adjournments.
(viii) The deposition of the witness shall be
signed immediately in the presence of the
nominated officer of the Indian High
Commission. The said officer shall certify /
attest the signatures of the witness.
(ix) The audio and visual shall be recorded at
both the ends and copies thereof shall be
provided to the parties at the expense of the
plaintiff.
(x) The plaintiff shall bear the cost of certified
copies of the documents of the suit to the
provided to the Indian High Commission at
Russia. The said certified copies shall be
forwarded to the office of Indian High
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Commissioner with the help of the Ministry of
External Affairs.
(xi) The plaintiff shall ensure that prior
intimation in this regard is filed in this Court
giving full particulars of the names of the
persons as well as enclosing documents of
authority in respect of the persons, who shall
be representing them in the proceedings.
(xii) The plaintiff shall bear the cost/
expenses of the video conferencing.
(xiii) The officer of the Indian High
Commission to be nominated by the Indian
Officer shall be entitled to honorarium in
terms of the amount.
3) Accordingly, Notice of Motion No. 1082/2018 and
Exhibit-4 is disposed of.
(Smt. S.S. Nagur)
Judge,
City Civil Court,
Gr. Mumbai.
Dictated on : 26/10/2020.
Transcribed on : 31/10/2020.
Sign on : 02/11/2020.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04/11/2020 12.05 p.m. Prachi Y. Potdar (H.G.)
Name of the Judge HHJ Smt. S.S. Nagur
(CR No.13)
Date of Pronouncement of
Judgment/Order.
26/10/2020
Judgment/order signed by P.O on 02/11/2020
Judgment/order uploaded on 04/11/2020
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