The procedural complexities in commercial litigation often bring about interpretative challenges, particularly when it involves the integration of electronic evidence. One such instance arose in a suit instituted by the plaintiffs in 2007 for injunction restraining trademark infringement and passing off, where the controversy centered around the timing of filing an affidavit under Sections 65-A and 65-B of the Evidence Act, 1872.

Background of the Case:
The suit, initiated by the plaintiffs in 2007, had its issues framed by January 2009. Despite early filing of affidavits by way of examination-in-chief from two witnesses, these witnesses were never examined. By 2016, with the original witnesses no longer available, the plaintiffs filed a new affidavit by Mr. Aditya Singhal, a constituted attorney of the plaintiffs, on October 17, 2016. This affidavit was intended to tender into evidence several documents, including those containing electronic records supported by an affidavit under Sections 65-A and 65-B of the Evidence Act.

The defendant objected to these documents, arguing that the affidavit under Sections 65-A and 65-B should have been filed contemporaneously with the electronic records. This objection brought into focus the applicability and interpretation of Order XI Rule 6 of the Commercial Courts Act, 2015, particularly in the context of the procedural stages of filing such affidavits.

Legal Provisions and Interpretative Analysis:
Sections 65-A and 65-B of the Evidence Act, 1872:
Sections 65-A and 65-B of the Evidence Act deal with the admissibility of electronic records. Section 65-B, in particular, requires a certificate accompanying electronic records to ensure their authenticity. This certificate must be signed by a responsible persob and must attest to the particulars of the device and the process by which the electronic record was produced.

Order XI Rule 6(3) of the Commercial Courts Act, 2015:
Order XI Rule 6(3) addresses the filing of documents in commercial suits. It permits parties to file documents at a later stage, provided they can demonstrate a sufficient cause for not having produced them earlier.

Judicial Interpretation by the Delhi High Court:
The Delhi High Court, in addressing the objection, highlighted the flexibility provided by Order XI Rule 6(3). The Court observed that this provision does not preclude the filing of a certificate under Section 65-B at a later stage. The interpretation hinges on the understanding that the rule permits subsequent filings if justified by sufficient cause. The Court acknowledged that the procedural rules governing commercial suits should facilitate justice and not serve as rigid barriers to the presentation of evidence.

Analytical Implications
Flexibility in Procedural Compliance
The Court's interpretation reinforces a flexible approach to procedural compliance in commercial litigation. It underscores that procedural rules should not unduly hinder the adjudication of substantive rights, especially in complex commercial disputes where the nature of evidence might evolve over time.

Ensuring Fairness and Efficiency:
By allowing affidavits under Sections 65-A and 65-B to be filed later, the Court aims to balance fairness and efficiency. This approach ensures that technical objections do not obstruct the adjudication process, provided the filing party can justify the delay.

Future Impact on Commercial Litigation:
The ruling sets a precedent for future commercial litigation, emphasizing that procedural rules should adapt to the practicalities of modern evidence presentation. It encourages litigants to ensure thorough documentation of electronic records while also providing leeway for rectification if procedural lapses occur.

Conclusion:
The Delhi High Court's decision affirms the plaintiffs' right to file an affidavit under Sections 65-A and 65-B of the Evidence Act at a later stage, aligning with the provisions of Order XI Rule 6(3) of the Commercial Courts Act, 2015. This ruling not only clarifies the procedural aspects of filing electronic evidence in commercial suits but also promotes a judicial approach that balances strict adherence to procedural rules with the overarching goal of substantive justice.

Case Title: Elli Lilly and Company Vs Maiden Pharmaceutical Limited
Order Date: 09.11.2016
Case No. CS(COMM) 1472 of 2016
Neutral Citation:2016:DHC:7411
Name of Court: Delhi High Court
Name of Hon'ble Judge: R. S. Endlaw. H.J.

Disclaimer:
Ideas, thoughts, views, information, discussions and interpretation expressed herein are being shared in the public Interest. Readers' discretion is advised as these are subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the fact and issue involved herein.

Written By: Advocate Ajay Amitabh Suman, IP Adjutor - Patent and Trademark Attorney
Email: [email protected], Ph no: 9990389539