2007 (1) TMI 611 - HC - Indian Laws

Court dismisses defendant's objections on affidavits, allows plaintiff to proceed with cross-examination.

The court dismissed all objections raised by the defendant regarding multiple affidavits by the same witness, replication of written statements in ... Affidavit and solemn affirmation - admissibility of documents filed with affidavit - waiver of objection by conduct - compliance with Order 18 Rule 4 CPC - requirement of translation for foreign language documents - legalization/apostille and effect of foreign notarial acts - right to cross-examine and consequence of refusalAffidavit and solemn affirmation - affidavit v. certificate - Whether the document described as an affidavit dated 2.2.2006 is an affidavit in law and whether the earlier affidavit dated 3.12.2005 can be objected to as being a replication. - HELD THAT: - The document of 2.2.2006 is a certificate and does not purport to be made on solemn affirmation; mere description in the index does not convert it into an affidavit. A statement not made on solemn affirmation cannot be treated as an affidavit. The affidavit filed on 3.12.2005 constituted the witness's examination-in-chief; that it may contain matter beyond pleadings does not render it impermissible as an affidavit. Objections as to content being replication are matters for cross-examination and for final adjudication at hearing, and do not justify refusing to record evidence.The objection treating the 2.2.2006 document as an affidavit is rejected; the objection that the 3.12.2005 affidavit is an improper replication is also rejected.Admissibility of documents filed with affidavit - compliance with Order 18 Rule 4 CPC - waiver of objection by conduct - Whether the defendant could, on 16.1.2007, object to production of documents filed with the affidavit of 3.12.2005 and refuse to cross-examine the witness on that ground. - HELD THAT: - The affidavit and its annexed documents were filed on 3.12.2005 and served on the defendant; under Order 18 Rule 4 CPC examination-in-chief is by affidavit and objections can be recorded and decided later. The defendant did not object during the long period after filing, including at earlier hearings and at the time the court allowed limited steps (e.g., exemption application). By failing to raise the objection earlier and waiting for the foreign witness to appear, the defendant waived its right to object and its conduct amounted to an attempt to frustrate trial progress. Documents of the kinds identified (notarised power of attorney, certified copyright registrations, certified foreign registrations, certified court orders and literature/reports) are, in law, producible and the trial court may permit their production subject to admissibility objections at the appropriate stage.The defendant's belated objection to the documents is rejected as waived; leave is granted to the plaintiff to produce the said documents subject to any admissibility objections.Requirement of translation for foreign language documents - admissibility of documents filed with affidavit - Whether absence of English translations of foreign language documents justified refusal to proceed with cross-examination. - HELD THAT: - Delhi High Court Rules require translation for reception by the Registry and for setting down matters for hearing, but the mere fact that certain filed documents are in foreign languages and translations have not been filed does not permit the defendant to refuse cross-examination. Such objections can be raised before the Local Commissioner or at the stage of arguments; they do not justify obstructing recording of evidence.The objection based on absence of translations is rejected as a ground to refuse cross-examination; admissibility to be contested later.Legalization/apostille and effect of foreign notarial acts - legal validity of notarisation abroad - Whether the affidavit of the foreign witness notarised in France, but not certified by Indian diplomatic/consular officers, was inadmissible for want of legalization/apostille. - HELD THAT: - The Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 empowers consular officers to administer oaths and perform notarial acts but does not restrict validity of notarial acts abroad to those performed by Indian diplomatic/consular officers. Notarial acts are public documents under the Hague Convention and recognized authorities have afforded recognition to foreign notarial acts; judicial precedents support treating properly notarised foreign documents as presumptively authentic for purposes of evidence. Moreover, where the witness is personally present, any doubt as to formal attestation can be cured by putting the witness under oath and recording his testimony. There was no sufficient ground to impugn authenticity or dependability of the French notarial act.The objection that the affidavit is not legalized/apostilled or is invalid because not notarised by Indian diplomatic/consular officers is rejected.Right to cross-examine and consequence of refusal - waiver of objection by conduct - Whether the defendant's refusal to cross-examine the foreign witness on 16-17 January 2007 disentitled it to the right of cross-examination and what consequence should follow. - HELD THAT: - All objections raised by the defendant were of the type that could have been raised during cross-examination or determined later; by refusing to proceed when the witness was present, after having had notice of the affidavit and documents, the defendant frustrated the trial and waived its right to withhold cross-examination. The court found the defendant's conduct unjustified, caused delay and inconvenience, and therefore imposed a consequence to protect trial progress and the plaintiff's witness.The defendant is granted one last and final opportunity to cross-examine the witness immediately (at the appointed time) but is directed to pay costs as imposed; refusal earlier disentitled it to delay.Final Conclusion: All objections raised by the defendant to the form or filing of the plaintiff's affidavit and annexed documents are rejected; the defendant's belated objections are treated as waived by conduct and do not justify refusal to cross-examine the foreign witness. The plaintiff is permitted to produce the documents subject to admissibility challenges, and the defendant is granted a final opportunity to cross-examine the witness forthwith subject to payment of costs. Issues Involved:1. Objection regarding multiple affidavits by the same witness.2. Objection that the affidavit is a replication of the written statement.3. Objection to the introduction of new documents without prior permission.4. Objection to documents in foreign languages without translations.5. Objection to the affidavit not being legalized or apostilled.Summary:1. Objection regarding multiple affidavits by the same witness:The defendant objected to the presence of two affidavits by Mr. Christian London, claiming one filed on 2.2.2006 was not an affidavit. The court found this objection frivolous, stating, 'a statement, which is not made on solemn affirmation and does not even purport to be as made on solemn affirmation, cannot be treated as an affidavit.'2. Objection that the affidavit is a replication of the written statement:The defendant argued that the affidavit filed on 3.12.2005 was essentially a replication of the written statement. The court rejected this objection, stating, 'It is for the witness to state, whatever he may choose to state and depose in his affidavit by way of examination-in-chief.'3. Objection to the introduction of new documents without prior permission:The defendant objected to new documents filed with the affidavit on 3.12.2005, claiming no prior permission was sought. The court noted that no objections were raised since the filing of the affidavit and documents on 3.12.2005, and considered this conduct as a waiver of objections. The court allowed the plaintiff to produce the documents, stating, 'No serious prejudice would be caused to the defendant by the production of any of these documents.'4. Objection to documents in foreign languages without translations:The defendant objected to documents in foreign languages without translations. The court found this objection insufficient to halt cross-examination, stating, 'the defendant could have raised its objection before the Local Commissioner with regard to the admissibility of the documents in other languages but could not have refused to cross-examine the witnesses.'5. Objection to the affidavit not being legalized or apostilled:The defendant argued that the affidavit was not legalized or apostilled as required by law. The court rejected this objection, explaining that the affidavit notarized by a French Notary was sufficient and did not require further certification by an Indian Diplomatic or Consular Officer. The court cited various precedents supporting the validity of notarized documents from foreign countries.Conclusion:The court found all objections raised by the defendant to be without merit and aimed at delaying the trial. The defendant was given a final opportunity to cross-examine the witness, subject to the payment of Rs. 50,000 as costs. The court ordered the cross-examination to proceed before the Joint Registrar/Local Commissioner.