Category: Civil Law

Delhi High Court on the law of irrevocable power of attorney(s) and ‘agency coupled with interest’ in the context of GPA/Agreement to Sell transactions.

August 18th, 2017
Case Note on : Vimla Devi v. Pushpa Devi and Anr- 2017 SCC OnLine Del 8694

In this case, Hon’ble High Court of Delhi had the occasion of examining the above question.

The facts of the case lie in a very narrow conspectus:

Plaintiff’s case

Conventional (purported) sale documents
- The Plaintiff/Appellant claimed that she was the owner of 200 sq. yards of the property situated in Shahdara, Delhi. Out of the area of 200 sq. yards, the appellant/plaintiff sold 70 sq. yards to the respondent no. 1/defendant no. 1 on 11.2.1998 for a sale consideration of Rs. 1,75,000/-.
- On 11.2.1998, appellant/plaintiff executed a conventional set of documentation being the agreement to sell, general power of attorney, Will, receipt, etc. in favour of the respondent no. 1/defendant no. 1. (These documents used to be executed in order to avoid stamp duty/registration charges, and when Sub Registrars would not recognise Sale Deed(s) in an unauthorised colony/area. For a more detailed discussion of validity of such documents, see Suraj Lamps and Industries Pvt. Ltd.State of Haryana, 183 (2011) DLT 1 (SC).
Cancellation of those documents
- The area of 70 sq. yards consists of two rooms, a latrine and a bath room, and possession of which was taken by the respondents/defendants on 11.2.1998. It was further pleaded in the plaint that since there was non-payment of the entire consideration, hence the appellant/plaintiff cancelled the documentation dated 11.2.1998 by the cancellation document dated 6.4.1998, and appellant/plaintiff also sent a legal notice of the same date to the respondents/defendants.
- It was further pleaded that inspite of cancellation of the documents on 6.4.1998 the respondents/defendants did not vacate the suit property, and hence the subject suit was filed.
Defendant’s stance
- The suit was contested by the respondents/defendants. It was pleaded by the respondents/defendants that complete consideration of Rs. 1,75,000/- was paid when the documents dated 11.2.1998 were executed in favour of the respondent no. 1/defendant no. 1.
- It was also pleaded that the appellant/plaintiff with dishonest intentions cancelled the documents on 6.4.1998. It was pleaded by the respondents/defendants that appellant/plaintiff had no authority to cancel the documents and hence the cancellation has no significance to the purchase of the suit property by the respondent no. 1/defendant no. 1. The respondents/defendants pleaded that the adjoining 130 sq. yards to the plot of 70 sq. yards was already owned and was in possession of the respondents/defendants, and hence the respondents/defendants are in possession of the whole 200 sq. yards. The suit was accordingly prayed to be dismissed.
Main Issue Before the Court
- The main issue which arose was whether GPA/and other documents in this case constituted ‘agency coupled with interest’ and therefore irrevocable? If yes, what is the effect of the registered cancellation deed?
Decision
- The Court held that the cancellation of the documents dated 11.2.1998 by the appellant/plaintiff by the documentation dated 6.4.1998 is of no legal effect.
- The Court noted that transfer of rights in an immovable property is by a contract i.e the same is a bilateral act, and such bilateral contract cannot be cancelled unilaterally i.e by unilateral cancellation of documents by which rights in immovable property are transferred by the transferor to the transferee.
- On the question of ‘irrevocable agency’ the court extracted the legal position from previous cases:
“20. In the matter of Hardik Kaur v. Kailash (S.B.) 193 (2012) DLT 168 it was stated “the words” and interest in property which forms the subject matter of the agency” in Section 202 of the Contract Act, 1872 are of wider amplitude than the words “an interest in or charge on such property” in Section 54 of the Transfer of Property Act, 1882. Where the seller has received the sale consideration in pursuance of the agreement to sell and has delivered the possession to the purchaser, the purchaser would have interest in the property within the meaning of Section 202 of the Contract Act”
Thus the GPA dated 11.02.1998 is irrevocable in view of Section 202 of the Contract Act, 1872. The plaintiff, therefore, had no right to terminate the said GPA. The revocation of the GPA by plaintiff is, therefore, of no consequence.
Moreover the plaintiff has shown only the photocopies of the cancellation deeds Ex.PW 1/7 and Ex PW 1/8 dated 06.04.1998. The cancellation deeds are thus not proved on record. The documents can be looked at, at the instance of the opposite party. The cancellation deed neither mentions that consideration was not received nor has any other cause of cancellation been specified. The non-disclosure of any reason in the cancellation deed clearly suggests that there was in fact no dispute about consideration, as being claimed by the plaintiff in his suit. In addition, the legal notice sent makes no mention of the fact that the consideration amount had not been received. Moreover, the legal notice also does not state as to whether upon cancellation the consideration amount paid was being returned to the defendant by the plaintiff.
Even if it is assumed for the sake of argument that the cancellation deeds are genuine, the agreement tot sell of which the plaintiff has placed on record a certified copy Ex.PW 1/2 was never cancelled by the plaintiff. As per the agreement to sell, it is on record that the possession was handed over by the plaintiff to defendant no. 1 while executing the documents. It is also clearly stated in the agreement to sell which is a document admitted by both parties that the consideration of Rs. 1,75,000/- has been paid by the defendants to the plaintiff. The plaintiff has also executed a receipt of the same amount. Hence the plaintiff has no right to cancel or revoke documents dated 11.02.1998 which were executed by the plaintiff in favour of defendant no. 1 for sale of 70 sq. yards of the suit property.
Placing reliance on judgments of the Hon’ble High Court of Delhi inRamesh Chandv. Suresh Chand, 188 (2012) DLT 538 and Hardip Kaur v. Kailash Supra, it is held that Defendant no. 1 in the matter at hand thus may not be a classical owner as would be in case of a registered sale deed, however, they would have certain rights and entitlement over the property. Furthermore this coupled with the fact that the defendants also have actual physical possession, builds a strong case in their favour. Thus, the interest created by the agreement entered into between the parties still lies with the defendant.
On basis of the discussion above, it is held that plaintiff is not entitled to the relief of possession or injunction in regard 70 sq. yards of the suit property as claimed for. Furthermore the plaintiff has asked for the relief of permanent injunction in relation to the whole 200 sq. yards. When the relief of 70 sq. yards out of 200 sq. yards cannot be granted, there is no question of granting a relief in relation to whole 200 sq. yards.”
- The Court upheld the decision of courts below placing reliance upon Section 202 of the Indian Contract Act as also the judgment delivered by this Court in the case of Shri Ramesh ChandSuresh Chand, 188 (2012) DLT 538 which holds that documents which are in accordance with the amended Section 53A of the Transfer of Property Act, 1882 and executed prior to 24.9.2001 when by Act 48 of 2001 Section 53A of the Transfer of Property Act was amended to require compulsory stamping and registration of an agreement to sell, then such documents prior to 24.9.2001 are valid documents because the amendment to Section 53A of the Transfer of Property Act is prospective in nature.
- The Court also held that – this aspect is clearly stated by the Supreme Court in the judgment in the case of Suraj Lamps and Industries Pvt. Ltd.State of Haryana, 183 (2011) DLT 1 (SC) wherein the Supreme Court has held that those agreements to sell, power of attorneys and Wills, which are in accordance with Section 53A of the Transfer of Property Act, Section 202 of the Indian Contract Act and the relevant provisions of the Indian Succession Act, the same will continue to be valid i.e documents executed prior to 24.9.2001 being in accordance with the then existing Section 53A of the Transfer of Property Act which did not require stamping and registration of the agreement to sell would be valid documents.
- The Court concluded by holding : “The courts below, in my opinion, have also rightly held that the fact that possession was given to the respondent no. 1/defendant no. 1 by the appellant/plaintiff in terms of the documents dated 11.2.1998 shows that the appellant/plaintiff had received the entire sale consideration. I also adopt the other reasoning as given by the courts below showing that complete sale consideration has been duly received by the appellant/plaintiff”
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Stamping of insufficiently stamped documents and procedure of impounding by Court

August 5th, 2017
Stamping of agreements/deeds is governed by the Indian Stamp Act, 1899 (“the Stamp Act”). If the document is not sufficiently stamped, then by virtue of Section 35 of the Stamp Act there is a bar on ‘admitting’ such a document in evidence or acting upon it.

Section 36 of the Stamp Act tells us that if this objection is not taken at the first instance, it stands waived and inadmissibility of the document cannot be argued later except as provided under Section 61 of the Stamp Act.

Further, Section 33 of the Stamp Act empowers the Court, acting as the protector of state revenue, to examine and impound an unstamped/insufficiently stamped document. The provision stipulates that, if an instrument chargeable with stamp duty is produced before a Court and is not duly stamped, the Court shall impound the same. Therefore, there is a mandate on the Court to impound the document when this issue is brought to its attention.

With the basics being thus, a couple of questions concerning this issue:
1. Who can impound?
  1. Any person authorized to receive evidence either by law or by the consent of the parties;
  1. Any person in charge of public office;
  1. Includes a ‘Court’. Courts are under a statutory obligation to impound even suo motu.
- When can a document be impounded?
  - When the document is produced or comes before the Court in performance of its functions.
  - Production connotes voluntary production or in pursuance of a Court order (e.g.: Warrants cannot be issued against a person to compel him to produce a document for the purposes of impounding of the same).
- What kind of document? – Only the original.
3A. At what stage is this objection required to be decided?

It is important to note that as held in Javer Chand And Others vs. Pukhraj Surana 1961 AIR 1655 whenever a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, that objection has to be decided first, before anything else. This is different from other objections which are merely recorded at trial and final decision deferred till appreciation of evidence.

This view is also supported by Bipin Shantilal Panchal vs. State of Gujarat 2001 (3) SCC 1 (3 judge bench), where it was noted:

“14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view, there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections, the procedure suggested above can be followed.)”
Bipin Shantilal Panchal vs. State of Gujarat 2001 (3) SCC 1

Arbitration Clause in an Insufficiently Stamped/Unstamped Contract:

It was held in M/s SMS Teas Estates (P) Ltd vs. Chandmari Tea Co (P) Ltd. (2011) 14 SCC 66 that when the arbitration clause is contained in an insufficiently stamped/unstamped contract, a Court dealing with a petition under Section 11 of the Arbitration & Conciliation Act, 1996 (“the ACA”) cannot act upon such an arbitration clause and should impound the document under Section 33 of the Stamp Act and follow the procedure of impounding as per law.

Interestingly, a full bench of the High Court of Bombay in Gautam Landscapes Pvt. Ltd. vs. Sailesh S. Shah 2019 (3) Mh.LJ 231 dealt with the issue of an arbitration clause in an insufficiently stamped agreement under an application for interim measures by the Court as provided by Section 9 of the ACA. The High Court of Bombay distinguished the case from SMS Teas Estates (supra) on the ground that the scope of Section 9 and 11 of the ACA is different and held that “the issue relating to stamping of the document could further be dragged on before the revenue authority, which may take considerable time for its final decision or conclusion and by that time the party may suffer damage and would be without any remedy in respect of seeking protection under Section 9.” The Court further held that as the arbitration clause is a separate agreement from the main contract, only the arbitration clause will have relevancy for the purpose of an application under Section 9 of the ACA and the issue of non-payment of stamp duty can be raised at a later stage.

However, as held in Garware Wall Ropes Ltd v. Coastal Marine Construction & Engineering Ltd 2019 SCC OnLine SC 515, the view taken by the Full Bench of High Court of Bombay in Gautam Landascapes (supra) does not apply to a petition under Section 11 of the ACA. The Court also opined that the addition of Section 11(6A) was only to restrict the scope of judicial interference in an application under Section 11 of the ACA and the law propounded by SMS Teas Estates (supra) [SS1] continues to hold. SMS Teas Estates (supra) was also recently affirmed by the Supreme Court in[BC2] Dharmaratnakara Rai Charities and others vs. M/s Bhaskar Raju & Others, Civil Appeal No. 1599 of 2020.

The Supreme Court is yet to decide on the issue of admissibility of an insufficiently stamped/unstamped document under Section 9 of the ACA as the same was not in issue before the Court in SMS Tea Estates (supra) and Garware Wall Ropes (supra).

Step by Step Procedure of Impounding:

As gleaned from Chilakuri Gangulappa v. RDO, Madanpalle and Ors. 2001 (4) SCC 197 and provisions of Section 33 of the Stamp Act, the following are the steps taken by a Court when dealing with an insufficiently stamped or unstamped document:
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Demystifying law of liquidated damages under Indian Contract Act

May 21st, 2017
Law of Liquidated Damages and Penalty (S.74 of the Indian Contract Act)

When the contract mentions a ‘specific amount’ to be paid as compensation in case of breach :
1. Whether that amount is ‘conclusive’ and bars any enquiry by the court into actual loss/damages suffered;
2. Whether the claiming party is obviated from proving the ‘actual loss’;
3. Whether the claiming party is also obviated from proving ‘any loss’ as a consequence of breach of the contract;
These are the questions that this post seeks to answer.

Since our Contract Law is derived from English Cases, let us first begin at the beginnings and briefly examine the English Law in this regard :-

English Law

The parties to a contract may determine beforehand the amount of compensation payable in the event of breach. According to English law, a sum so fixed may fall in any of the following categories :
- Liquidated damages, or
- Penalty
If the sum fixed represents a genuine pre-estimate of probable damage that it likely to result from the breach, it is liquidated damages. A sum less than the amount of probable damage is also regarded as liquidated damages. The whole of such sum is recoverable.

In the latter cases, the money stipulated is in terrorem, i.e an extravagant and unconscionable amount, totally out of sync with the actually loss that could be conceived in the case, quoted as a deterrent with a view to discourage breach of contract.

In such a case the court can reject the named amount, and damages will be calculated in accordance with ordinary principles. The fixed figure does constitute the maximum ceiling, and can never be exceeded though.

Indian Law

Indian Law strikes a slightly different note. Section 74 reads as under :-

Compensation for breach of contract where penalty stipulated for.— When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.—A stipulation for increased interest from the date of default may be a stipulation by way of penalty.]
Section 74 of the Contract Act

On a bare reading it appears that the Indian Law has steered clear of the distinction between Penalty and Liquidated Damages, and makes two things clear :-
1. The amount mentioned by the parties constitutes the upper limit;
2. Within that ceiling, a reasonable compensation is to be awarded.
Some other important points :
- Prior to invoking right to damages, the injured party will have to prove breach of contract on the part of the other party.
- The Court has to make its own assessment of the amount of loss causes by the breach. It cannot blindly follow the contract clause in awarding damages without any adjudication (Uma Minerals v. Malabar Cements Ltd, AIR 2003 Ker 146);
- Contrary to misconception – Distinction between liquidated damages and penalty is not altogether irrelevant to the section.
  - Its relevance, in the first place, arises from the fact that the amount contemplated by the parties will be reduced only if it appears by way of penalty. Otherwise the whole of it is recoverable as liquidated damages.
  - Secondly, this is also implicit from the use of word ‘penalty’ in first explanation of the section, which allows exorbitant rate of interest to be construed as penalty and consequently diluted.
Some case studies.

Fateh Chand v. Balkishan Dass, AIR 1963 SC 1405 (Constitution Bench) Out of Earnest Money- only ‘Reasonable Amount’ liable to be forfeited.
Facts : Agreement for sale of certain land/house for Rs. 1,12,500. Rs. 1000 was payable as earnest money and Rs. 24,000 on delivery of possession. These payments were made and buyer was put in possession. Agreement further provided that if buyer failed to pay the balance price and get sale deed registered, sum of Rs. 25,000/- would stand forfeited. Buyer defaulted.
Held : The court allowed forfeiture of Rs. 1000 in the facts of the case, as the same was found to be reasonable, but conclusively held that only such amount is liable to be forfeited as is found to be reasonable.

Chunilal V. Mehta & Sons Ltd. V. Century Spg and Mfg. Co. Ltd. (1962 Supp (3) SCR 549)

‘By providing for compensation in express terms (S.74) the right to claim damages under the general law (S.73) is necessarily excluded.’

Facts :
- Agreement for appointment of managing agents.
- Remuneration Rs. 6000 per month or 10 % of gross profits of a year, whichever was more.
- In the event of premature termination, their compensation not less than Rs. 6000 per month for the whole of the unexpired period.
- They were removed before the expiry of term and compensation @ 10 % of gross profits for unexpired term was sought.
SC held : the agents were entitled to Rs. 6000 per month as per the contract and not 10 % gross profits. By naming damages, the general application of principles of damages stood excluded.

WHETHER ACTUAL LOSS NECESSARY ?
- Chunilal (supra) first held that ‘proof of actual loss or damage’ is not necessary, however there should be legal injury as a result of the breach. Proof of some loss is, therefore, necessary.
- This was reaffirmed by the SC in Maula Bux v. Union of India (1969) 2 SCC 554.
Case Study – Maula Bux v. Union of India (1969) 2 SCC 554.
Facts : A supplied to the government deposited a certain amount of money as security for performance of the contract. Contract breached. Government rescinded the contract and sought to forfeit the entire Security Deposit. The government argued that it is not incumbent on them to prove ‘actual loss or damage’.
Held : The words ‘whether or not actual damage or loss is proved to have been caused thereby’ apply only in those cases where it is not possible to prove monetary value of the loss, and, therefore, value fixed by parties may be taken as a reasonable measure of compensation.
In the present case, loss could be determined. The government having led no evidence to prove : Whether prices paid to alternate source of supply were less or more than the contract price, therefore, the Government was not entitled to any compensation for the breach.

Applying Maula Bux (supra) damages have been declined in a catena of cases where no loss was proved, or infact a profit was made subsequent to the breach of the contract. (See : Ennore Port Ltd v. Hindustan Construction Co Ltd. (2005) 4 Mad LJ 86; State of Orissa v. Calcutta Co Ltd. AIR 1981 Ori 206).

Other Points relating to S.74.
- Principle of S.74 applicable to amount quoted in consent decrees (Parvati Bai v. Ayodhia Pd. Jain, 1985 MPLJ 703) In this case it was held that a consent decree is a contract and any penalty clause therein can be read down. It went on to the extent of saying that “the executing court shall always have the power to apply equitable principles embodies in Section 74 and relieve a party to a contract against any term in the decree which operates as penalty”
(Ed. Comment : Students of Civil Procedure may want to examine whether such an approach on part of the executing court amounts to going behind the decree, on which there is a specific mandate. Students may also examine as to the role of court passing the consent decree, whether that court should ensure that no penalty/excessive damage clause creeps in the agreement. What would be the brief of the court passing such decree would also be interesting to examine)

Whose Burden is it to prove loss, or absence of loss, as the case may be.

It appears from the decision in Chunilal (supra) that it is for the party claiming damages to prove the quantum of damages.

However, a somewhat discordant note was struck by the SC in ONGC Ltd. V. Saw Pipes Ltd. (2003) 5 SCC 705 wherein the court held that “Burden of Proving that no losses were actually caused to the other party was on the party committing breach. The Court said that it was not necessary for the party to lead evidence to show the amount of loss suffered by it unless the breaching party came to the court and proved that no loss was in-fact caused.

The case involved public utility services and has been a precedent in such cases ever since.

Section 74 and Public Contracts – Latest Trends.

It was also held in ONGC (supra) that in cases relating to public utility, that by itself, could be a ground for compensation, even without proof of actual loss, as in such cases, the damage to the public at large is difficult, if not impossible to quantify and is assumed; it falls now on the party breaching the contract to prove that the clause is in the nature of a ‘penalty’ and no, or less damage actually occasioned.

In Saw Pipes (supra) the SC has, therefore, contemplated the onus shifting to the defendant to establish the absence of loss/damage and not other way round. It is rightly observed in the said judgment that where the contract in question is one relating to a public utility and for instance the loss/damage to the public on account of delay in due execution, the loss on account of the breach is not amenable to precise quantification and assessment.

The principle laid down in ONGC v. Saw Pipes Ltd. (2003) 5 SCC 705 has been reaffirmed recently by the SC in M/S Construction and Design Services v. DDA (2015) 14 SCC 263 in a case involving public utility/town planning/civic/public amenities contract and lapse in its performance, where amount named in contract was held to be conclusive and binding. This case related to a public utility and had contained an express finding to the effect that the contractor had failed to execute the work (construction of sewerage pumping station) (para 14). It is in this context that the Supreme Court held that if the entire amount stipulated is a genuine pre-estimate of damages, actual loss need not be proved (para 16). The Court further premised this conclusion on a finding that the evidence of precise amount of loss may not be possible.

[Ed. Comment : Upon fair reading of the relevant paragraphs of the judgment passed by the Supreme Court in the case of Construction and Design Services (supra), it is clear that the Supreme Court has retained the power of the court to examine as to what extent the party complaining the breach is entitled to compensation in the event of breach in the contract involving public utility service containing pre-estimated damages and the same is rightly so in view of the provision of Section 74 of the Act]

However, in cases not involving public amenities, courts have fallen back on the traditional principles of Fateh Chand (supra) and Maula Bux (supra). A recent example is Kailash Nath Associates v. DDA & Anr. (2015) 4 SCC 136 where earnest money paid was held not liable to be forfeited and ordered to be returned with interest, as DDA subsequently auctioned the land to other party at almost 5 times the price, and also because breach on the part of the appellant was not proved. Besides, the court also held that this was a case where bid did not fructify into an actual agreement, and Section 74 of the Contract did not apply at pre-contract stage, therefore, restitution ought to be made and not grant of damages. In this case notably, it was not the case of DDA that it had suffered any damages on account of alleged breach of conditions/non payment by the appellant, infact it had made a killing out of the subsequent auction.

Latest in the Delhi High Court on this :-
A Recent Delhi High Court decision where liquidated damages have been denied on account ‘no loss’ is : Punj Lloyd v. Gail India Ltd. 2016 SCC OnLine Del 2542
A latest judgment by the Delhi High Court on payment of reasonable damages, within the maximum ceiling, on non-proof of fact that contract related to public serves is : ATC Telecom Tower Corporation Pvt Ltd. V. Videocon Communications Ltd. 2016 SCC OnLine Del 5237.
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Law on Foreign Divorce Judgments, Child-Custody Orders & Anti Suit Injunctions

May 15th, 2017
Introduction

“H (an NRI) is divorced in Texas, and to marry – he is free;
No, he has a wife in India, Indian Law says, doesn’t he ?,
H is, therefore married and not so, all at the same time;
perfectly legal at one place; in the second, his act – a crime.”

This limerick reflects a classic case of conflict of laws. Picture this : H is an NRI & W an Indian woman who get married in Delhi. Soon thereafter, they move to Texas in the United States, where the husband resides and works. They live in Texas for about three years. Unfortunately, relations between the spouses turn sour, constraining H to file a divorce case in Texas Court seeking dissolution of marriage on the grounds of cruelty and irretrievable breakdown of the relationship. W receives the summons from the court, however, instead of participating in the court proceedings, she takes the next flight back-home, to her parental house in Delhi. The court in Texas grants H a decree of divorce on the ground of irretrievable breakdown of marriage, having regard to the fact that the allegations levelled by the husband in his divorce petition had gone un-rebutted.

The question that now arises is : whether the foreign divorce decree holds good in India ? If not, who ought to challenge it, and how ? Will it make a difference if the decree is granted also on the grounds of cruelty ? To complicate matters further, what if H marries another lady (let’s call her W-2) in Texas, six months thereafter. Would he liable for bigamy in India ?

Another situation that may also be visualised is : where H & W have a child out of the wedlock – ‘C’. However, subsequently there is bad blood between the parties and W insists that they part ways. When this proposal is resisted by H, W insists that she would leave for India along with the child, nonetheless. Apprehending that the child may be taken away. H approaches the court in Texas, which passes an order restraining W from taking the child out of the jurisdiction of the court. W, nevertheless, and in defiance of the restraining order, succeeds in going to India along with the child. Now, what remedy does H have ? Would the act of W qualify as ‘child abduction’, thereby entitling the husband to a writ of habeas corpus. Can he seek compliance of the child custody order of Texas Court in India, on the ground of principle of comity of courts ? Or, can the Indian Court embark on a full fledged scrutiny of the matter in order to independently decide the question of ‘welfare of the child’ ?

Let us further assume, for the sake of argument that – H had filed the divorce petition after W had left for India and not before. Whether W on her arrival in India, could have sought an anti-suit injunction in an Indian Court, seeking to restrain H from proceeding with the divorce case in Texas on the ground of lack of jurisdiction with the Texas Court, and her inability in participating in the proceedings? Can an Indian Court restrict a person from prosecuting a lis before a foreign court, if yes, what would be the considerations that will govern the exercise of such a power ?

These are some of the vexed legal questions being posed to Indian courts today, which have assumed significant importance in view of the fact that, in an increasingly globalising world, the Indian diaspora has now spread itself across continents. What compounds the problem is that this geographical migration does not mark a complete cutting of umbilical cord of customs, traditions and practices of their communities and Parties retain their cultural identities and affinities, wherever they go. They also prefer entering into alliances in their own country for a gamut of reasons. The laws prevailing in the countries (to which they subsequently move to) concerning : marriage, divorce, child custody – may or not be in consonance with the Indian Law. This leads to a situation of a proverbial ‘conflict of laws’; the onerous duty of resolving which falls on the Indian Judiciary. Faced with such cases, which are needless to state, extremely commonplace these days, the court has to walk the tightrope between two competing considerations : one one hand – the principle of due deference to a foreign court order (called the principle of ‘comity of courts’), and on the other hand – court’s allegiance to the domestic law in India and protection of the rights of its people.

This article is an endeavour to use the above illustrations as springboards to initiate an analysis of the knottiest problems of NRI Marriage and Divorce. We’ll try briefly revisiting the first principles of law relating to NRI Marriages, Solemnisation, validity and dissolution, and also the question of conclusiveness of foreign judgments in India. We shall also touch upon the possible grounds of challenge to foreign judgments, and Procedure thereof. In the last bit we talk about Child Custody issues with a conflict-of-laws element, and finally, the much debated issue of ‘anti-suit injunctions’.

**

Section 1 – NRI MARRIAGES

Provisions relating to solemnisation, registration and validity of marriage, law governing marriage, divorce and ancillary matters.

What is an NRI Marriage ?

The word ‘NRI Marriage’, though quite commonplace, is not defined anywhere and is not a legal term. It is commonly used as an broad phrase to connote a marriage between : an Indian, residing in India with another Indian, residing in a country other than India. The Indian residing in another country, may continue to hold Indian Citizenship (in which case, he/she will be an NRI, that is, a Non Resident Indian) or he/she may have acquired citizenship of that country (in which case, he will technically be a PIO, that is – a Person of Indian Origin) or other Indian Expatriates. However, marriages in both these cases are usually bracketed together under the phrase ‘NRI Marriages’. An overwhelming number of these marriages are arranged marriages; the considerations for entering into such a union may be diverse. Upward social mobility, cultural bond, material aspirations are some of the considerations.

Despite a huge public outcry for a special law governing NRI Marriages, there is no specific legislation in that regard. An NRI Marriage, therefore, may solemnized under either : The Hindu Marriage Act, 1955, The Special Marriage Act, 1954 or The Foreign Marriage Act, 1969 or any other personal law governing the parties.

A personal Law such as the Hindu Marriage Act, 1955, applies not just to Hindus, but also to Buddhist, Jains and Sikhs, residing in India, irrespective of the question whether they are domiciled in India or not. Hindu Marriage Act, 1955 also does not apply to Schedule Tribes and Marriage and Divorce in that regard is governed by their own Customary Laws. However, they can get married and get their marriage registered under the Special Marriage Act, in which case they are governed by the Special Civil Code.

With respect to residence of the parties, the Kerala High Court has ruled that Hindu Marriage Act, 1955 applies to all Hindus even if they reside in different parts outside India. However, both parties must be Hindu by religion in any of its forms and they satisfy the conditions and have performed the ceremonies provided in the Hindu Marriage Act, 1955. There can be no denial by local authorities to register marriages under Hindu Marriage Act, 1955 between Hindus having foreign domicile who have solemnised marriages under Hindu Marriage Act, 1955. Therefore, an NRI can get married to an spouse domiciled in India, or two NRIs can also get married in India as per the Hindu Marriage Act.

The Hindu Marriage Act, 1955 permits solemnisation of marriage of two Hindus, who are citizens of India. Here, the marriage is solemnised as per traditional Hindu Rites and Ceremonies and performance of those ceremonies gives the marriage what can be termed ‘Legal Sanctity’. As opposed to this, Special Marriage Act, 1954 is a completely secular law, permitting a civil marriage. A marriage is totally devoid of religious trappings and is akin to a civil contract. No religious ceremony is prescribed. The marriage is performed in the office of the Registrar of Marriages. The designated officer administers the marriage vows to the couple. After this, the couple along with the three witnesses, has to sign-in the register of marriages maintained by the Registrar. The relevant page in the register will also be counter signed by the officiating authority and will bear the seal of the sub-registrar of marriage of that district. The extract from this register is usually issued to the parties and is titled as a ‘Marriage Certificate’ which bears the seal of the officiating authority. Under this Act, “any two persons “ may marry, irrespective of caste, religion or even nationality. Even two foreigners may marry under this Act. Historically, the Special Marriage Act, 1954 was enacted as a prelude to a future common civil code. The parties by their consent could opt for the application of the Special Marriage Act and be governed by the secular law. It was aimed that such a law will encourage inter-caste/inter-religious unions, and thereby strengthen the bond of fraternity.

The Special Marriage Act also allows registration under the Act, of any marriage performed under any other form, law upon fulfilment of certain conditions. After the registration, all the provisions of the act will become applicable to such parties and they will no longer be governed by their special laws.

However, the Act provides for a mandatory waiting period of one month. This makes the process tedious for couples looking to marry in a hurry. This eventually constrains the parties to marry under the Hindu Marriage Act (usually a no frills wedding at an Arya Samaj Temple) and registering their marriages immediately as the Hindu Marriage Act does not envisage any notice period requirement.

With respect to non Indians, The Foreign Marriage Act, 1969 is a specific legislation which is applicable to a Marriage of an Indian Citizen to a Non Indian solemnised abroad. This act stipulates that marriages, where one of the parties is an Indian Citizen and the other is a non Indian, would be governed by the provisions of the Special Marriage Act, 1954. In a nutshell, The Foreign Marriage Act, 1969 provides that a Marriage performed outside India will be regarded as correct and valid provided it is performed in accordance with the law of the country where the marriage was performed. The test of formal validity of the marriage in such cases is, therefore lex loci celebrationis. That is to say, ‘Law of the land where the marriage was celebrated’

Registration of marriage

Once the marriage is solemnised, the next question that crops up relates to ‘Registration’. A marriage between two Hindus, may be registered under Hindu Marriage Act, or the Special Marriage Act. In the latter, there is a notice process, whereby objections are invited to the marriage from people at large, before the Certificate of marriage is granted, while in the former, this period is not insisted upon. However, if one of the spouses is a foreigner and not a Hindu by religion at the time of marriage ceremony, they will have to get their marriage compulsorily registered under Special Marriage Act, 1954.

Broadly under the Muslim, Christian and Parsi religions, the provisions of registration are more entrenched. The essential prerequisites for marriage and registration are laid down clearly. Under laws governing Christians and Parsis, as well as Special Marriage Act, formalities for the solemnisation of a marriage are strictly laid down and the priest is to provide a certificate of registration or alternatively, the marriage has to be registered with the Registrar of Births, Deaths and Marriages.

In contrast to this, Hindu Marriages, are based on different practices which are not uniform and thus not entrenched with clarity.

In India there is no umbrella legislation making registration of marriages an essential condition. The Supreme Court in Seema v. Ashwani Kumar has held : that all marriages shall be compulsorily registered and that the State Governments shall initiate action for rule-making in this regard. However, on the ground level there is a huge diversity of legislations and localised practices. The Law Commission of India in its 211th Report has recommended enactment of a “Marriage and Divorce Registration Act” to be made applicable in the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions, however there is great legislative apathy in this regard and the law has not been enacted. It goes without saying that a compulsory marriage registration legislation will rule out dishonest denials of marriage and will go a long way to protect the rights of spouses.

Hindu law

S. 8 of the Hindu Marriage Act merely provides for registration of an already solemnised marriage. Therefore, the act of registration is not entrenched within the solemnisation. Unlike, the Special Marriage Act, it does not provide for marriage through a civil authority. Registration comes after the marriage has been solemnised and is complete. The parties may appear before the Registrar within one month of marriage, or even thereafter, with an application for condonation of delay. Parties appear before the Registrar along with parents/guardians or other winesses.

For registration of the marriage, the marriage ought to be valid marriage as per the conditions laid down in Section 7 of the Hindu Marriage Act. Section 7 states that a Hindu Marriage may be solemnised in accordance with the Customary Rites and Ceremonies of either party thereto. A hindu marriage in order to be valid does not mandatorily require witnesses. The essence of validity of the marriage is the rites and ceremonies. This usually connotes ‘Saptapadi’. The word, Saptapadi means “Seven steps”. After tying the Mangalsutra, the newly wed couple take seven steps around the holy fire, that is called Saptapadi. This is usually held to be the core ceremonies, unless parties peculiar customs provide otherwise. In a number of cases it has been held that a mere exchange of garlands or putting vermillion on the head of the bride, is not sufficient to constitute a valid marriage.

As per the clear provisions of Section 8(5) The non registration of marriage does not detract from the validity of the marriage in any way, although may have implications in terms of fine etc.

If the marriage is solemnised in India under any of these laws, the question of Validity of the marriage, Divorce, Maintenance, Child Custody, Spousal Property matters are regulated by that law only, under which the marriage took place, regardless of the fact, that the parties may choose settle abroad in any part of the world, thereafter. Therefore, an Indian takes the Personal Law with him/her, wherever she chooses to go and settle.

Foreign Courts may also exercise jurisdiction over these subjects. However, their laws may be not be in consonance with the Indian Laws. This results in a situation of conflict of different legal regimes. Questions as to recognition and validity of foreign court decisions arise; These questions are resolved through what are known as ‘rules of private international law’. There is no comprehensive codified body of Private International Rules in India and the applicable rules are spread over various acts such as Hindu Marriage Act, Special Marriage, Code of Civil Procedure, Indian Succession Act. These questions arise mostly in cases of foreign judgments of divorce.

The law relating to foreign judgments.

Section 13 of the Code of Civil Procedure provides that a judgment of a foreign court is also conclusive in India under normal circumstances, in a lis between the same parties. This is based on the reasonable jurisprudential principle of res judicata, which places an ‘flogging of a dead horse’ and repeated litigation on the same points. This seeks to prevent wastage of precious judicial time & expense and also to ensure finality and certainty in human relations and commercial transactions.

Foreign Judgments are, therefore, conclusive in Indian Courts regarding any matter directly adjudicated between the same parties. It must be also be flagged that a decree of divorce obtained by a foreign court is not required to be sanctified or legitimised by an Indian Court.

This pays due homage to the principles of comity of courts and the upshot of this is that the courts shed their parochialism and be more internationalist, or atleast, tolerant in their outlook.

Similarly, Section 41 of the Indian Evidence Act, which provides that a final judgment of a competent court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accused or ceased at the time declared in the judgment for that purpose.

There are, however, certain exceptions to this general principle, where a foreign judgment is not taken to be conclusive and may not be recognised by the Indian Law. Such exceptions are laid down in the six clauses (a) to (f) of Section 13 :

In a nutshell, In the following six cases, a foreign judgment will not be considered conclusive:

(1) Foreign judgment not by a competent court;

(2) Foreign judgment not on merits;

(3) Foreign judgment against International or Indian Law;

(4) Foreign judgment opposed to natural justice;

(5) Foreign judgment obtained by fraud; and

(6) Foreign judgment founded on a breach of Indian Law.

Let us touch upon them briefly :-

(1) Foreign judgment not by a competent court

It is a fundamental principle of law that the judgment or order passed by the court which has no jurisdiction is null and void. Thus, a judgment of a foreign court, in order to be conclusive between the parties, must be a judgment pronounced by a court of competent jurisdiction. Such judgment must be by a court competent both by the law of the State which has constituted it and in an international sense and it must have directly adjudicated upon the “matter” which is pleaded as res judicata.

As to which courts can entertain a petition relating to matrimonial cases, is governed by personal law applicable according to the religion between the parties. For e.g. : A hindu couple, whose marriage is solemnised as per Hindu Rites and Ceremonies, would be governed by the Hindu Marriage Act, 1955 [for short ‘HMA’]. Section 18 of HMA provides that three courts shall have jurisdiction to deal with a matrimonial matter :- the courts of the place where the couple got married, last resided together as husband and wife and where the woman resides. However, there are certain exceptions to this, but more on that afterwards.

The leading authority on this point is Y. Narmismha Rao v. Venkat Lakshmi, where ‘A’ a husband obtained a decree of divorce against B (wife) from an American court on the ground that he was a resident of America. Thereafter, he remarried with a woman ‘C’. B filed a criminal complaint against A and C for bigamy back home in India. A and C filed an application for discharge. Dismissing the application, the Supreme Court held that the decree of dissolution of marriage was passed by a court without jurisdiction inasmuch as, neither the marriage was solemnised nor the parties last resided together in America, therefore the american court had no jurisdiction to grant the divorce as per Indian Law. The Foreign Divorce Decree was not held invalid in Indian Law on ground of lack of jurisdiction.

The court in this case went on to hold that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under the parties are married. The court also recognised certain exceptions to this principle :-
1. where the matrimonial action is filed in the forum where the respondent is domiciled or habitually or permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
2. where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;
3. Where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
Therefore, there are situations where a court may be vested with jurisdiction if the parties submits to the jurisdiction of the court. Such conduct is taken as ‘acquiescence’ and springs out of the principle that a person subjecting himself to the jurisdiction of a court willingly, cannot turn back and challenge the decision on jurisdictional grounds, if the decision happens to go against him or her.

(2) Foreign judgment not on merits

In order to operate as res judicata, a foreign judgment must have been given on merits of the case. Merit is the inherent goodness of truthfulness of a case. A judgment is said to have been given on merits when the same has been passed, after enquiring into the truth or falsity of the plaintiff’s case, the judge decides the case one way or the other. Thus, when the suit is dismissed for default of appearance of the plaintiff; or for non-production of the document by the plaintiff even before the written statement was filed by the defendant, or where the decree was passed in consequence of default of defendant in furnishing security, or after refusing leave to defend, such judgments are not on merits. It need not be gainsaid, that a petitioner ought not to become entitled to something, which he otherwise would not, merely because there is no opposition. For a decision to be on merits, the court is duty bound to examine the petitioner’s case within itself. However, at the time time, the mere fact of a decree being ex parte will not necessarily justify a finding that it was not on merits.

The acid test for deciding whether the judgment has been given on merits or not is to see whether it was merely formally passed as a matter of course, or by way of penalty for any conduct of the defendants, or is based upon a consideration of the truth or falsity of the plaintiff’s claim, notwithstanding the fact that the evidence was led by him in the absence of the defendant. In the latter case, the judgment can be said to be on merits and conclusive on the fact being agitated.

Most matrimonial cases, where the conflict of law situation arises is where one of the spouses leaves jurisdiction of the foreign court on receipt of summons/motion for appearance. Whether in such cases, the judgment is on merits or not, would depend essentially on the question as to whether the foreign court in its order considered the veracity of the petitioner’s case or not.

(3) Foreign judgment delivered in contravention of principles of International or Indian law

A judgment based upon an incorrect view of international law or a refusal to recognise the law of India where such law is applicable is not conclusive. But the mistake must be apparent on the face of the proceedings. Most judgments in matrimonial cases are hit by the mischief of this clause. Most indian laws permit the party to seek divorce on the ground of cruelty, adultery, desertion etc. However, irretrievable breakdown is not recognised as a ground for divorce by itself. Since many countries such as US, Europe, Australia recognise irretrievable breakdown as ground for divorce. Divorce under this ground, also known as ‘no fault divorce’ is the most commonly invoked ground for divorce, in view of the difficulty in proving a divorce based on fault. This is a situation where the conflict of law takes place.

The case of Anoop Beniwal v. Jagbir Singh Beniwal⁶⁵ is illustrative in this regard, it relates to a matrimonial dispute between the parties leading to a divorce case being filed by the husband in England on the basis of the English Act, that is the Matrimonial Causes Act, 1973. The particular ground under which the suit was filed was “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” This ground is covered by S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973 (i.e the english law). The decree was obtained in England and came to India for enforcement thereafter. The respondent/wife claimed that since the decree was based on the English Act, there was refusal by the English Court to recognise the Indian Law. However, the court negatived her contentions and held that under the Indian Hindu Marriage Act under S. 13(1)(ia), there is a similar ground which is “cruelty” on which the divorce may be granted. Therefore the English Act, only used a milder expression for the same ground and therefore there was no refusal to recognise the law of India. Thus the decree was enforceable in India.

(4) Foreign judgment in violation of principles of Natural Justice.

It is the essence of a judgment of a court that it must be obtained after due observance of the judicial process, i.e., the court rendering the judgment must observe the minimum requirements of natural justice- it must be composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case.

Thus, a judgment given without notice of the suit to the defendant or without affording a reasonable opportunity of representing his case is opposed to natural justice. Similarly, a judgment against a party not properly represented in the proceedings or where the judge was biased is contrary to natural justice and, therefore, does not operate as res judicata.

But the expression”natural justice” in clause (d) of Section 13 relates to the irregularities in procedure rather than to the merits of the case. A foreign judgment of a competent court, therefore, is conclusive even it is proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured; correctness of the judgment in law or on evidence is not predicated as condition for recognition of its conclusiveness by the municipal court. Thus, a foreign judgment is not open to attack on the ground that the law of domicile had not been properly applied in deciding the validity of adoption or that the court disagrees with the conclusion of the foreign court, if otherwise the principles of natural justice have been complied with.

In the context of matrimonial cases, it is not sufficient to merely aver that the defendant was served, it must also be demonstrated that the respondent/defendant was in a position to appear and participate effectively in the proceedings and put up a contest, and if the respondent is not in a position to do so, for financial reasons, arrangements must be made to enable her to do so, so as to ensure an adequate opportunity.

(5) Foreign judgment obtained by fraud

It has been said, “Fraud and justice never dwell together” (Fraus et jus nunquam cohabitant); or “Fraud and deceit ought to benefit none” (fraus et dolus nemini patrocinari debent).

Lord Denning observed, “No judgment of a court, no order of a Minister, can be allowed to stand, it it has been obtained by fraud.” Cheshire rightly states, “It is firmly established that a foreign judgment is impeachable for fraud in the sense that upon proof of fraud it cannot be enforced by action in England.” All judgment whether pronounced by domestic or foreign courts are void of obtained by fraud, for fraud vitiates the most solemn proceeding of a court of justice.

Explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment can not be brought on the ground that is has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside if the court was imposed upon or tricked into giving the judgment.

In A.V. Papayya Sastry v. Govt. of A.P., the Supreme Court observed: ”Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the cost of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of ‘finality of litigation’ cannot be stretched to the extend of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.”

In the leading case of Satya v. Teja Singh, a husband obtained a decree of divorce against his wife from an American court averring that he was domiciled in America. Observing that the husband was not a bona fide resident or domicile of America, and he had played fraud on a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and a nullity.

The fraud may be either fraud on the part of the party invalidating a foreign judgment in whose favour the judgment is given or fraud on the court pronouncing the judgment. Such fraud, however, should not be merely constructive, but must be actual fraud consisting of representations designed and intended to mislead; a mere concealment of fact is not sufficient to avoid a foreign judgment.

(6) Foreign judgment founded on breach of Indian law

Where a foreign judgment is founded on a breach of any law in force in India, it would not be enforced in India. The rules of Private International Law cannot be adopted mechanically and blindly. Every case which comes before an Indian court must be decided in accordance with Indian law. It is implicit that the foreign law must not offend our public policy.

Thus, a foreign judgment for a gaming debt or on a claim which is barred under the Law of Limitation in India is not conclusive. Similarly, a decree for divorce passed by a foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is indissoluble.

It is implicit that the foreign law and foreign judgment would not be offend against our public policy.

In the case of Neeraja Saraph v. Jayant Saraph (1994) 6 SCC 461. R.M.Sahai, K. of the SC, in action brought before the court by a deserted wife of a NRI husband for maintenance, made a three-fold recommendation addressed to the legislature for its thoughtful consideration which partake the character of ratio. They are :-
1. No marriage between an NRI and an Indian woman which has taken place in India may be annulled by a foreign court [emphasis added];
2. provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad; and
3. the decree granted by Indian Courts may be made executable in foreign courts, both on principle of comity and by entering into reciprocal agreements like Section 44-A of the CPC which makes a foreign decree executable, as it would have been a decree passed by that court.
PRESUMPTION AS TO FOREIGN JUDGMENT : SECTION 14

Section 14 of the Code declares that the court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record, or is proved. However, if for admissibility of such copy any further condition is required to be fulfilled, it can be admitted in evidence only if that condition is satisfied.

Thus, in Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 at pp.463-64), The Supreme Court held that mere production of a photostat copy of a decree of a foreign court is not sufficient. It is required to be certified by a representative of the Central Government in America as per Section 86 of the Evidence Act.

SUBMISSION TO JURISDICTION OF FOREIGN COURT

It is well-established that one of the principles on which foreign courts are recognised to be internationally competent is voluntary submission of the party to the jurisdiction of such foreign court. The reason behind this principle is that having taken a chance of judgment in his favour by submitting to the jurisdiction of the court, it is not open to the party to turn round when the judgment is against him and to contend that the court had no jurisdiction.

Submission to jurisdiction of a foreign court may be express or implied. Whether the defendant has or has not submitted to the jurisdiction of a foreign court is a question of fact which must be decided in the light of the facts and circumstances of each case.

ENFORCEMENT OF FOREIGN JUDGMENT

A foreign judgment which is conclusive under Section 13 of the Code can be enforced in India in the following ways:

(1) By instituting a suit on such foreign judgment, or

(2) By instituting execution proceedings.

(1) Suit on foreign judgment

A foreign judgment may be enforced by instituting a suit on such foreign judgment. The general principle of law is that any decision by a foreign court, tribunal or quasi-judicial is not enforceable in a country unless such decision is embodied in a decree of a court of that country. In such suit , the court cannot go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties. Such a suit must be filed within a period of three years from the date of judgment.

(2) Execution proceeding

A foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the Code. The said section provides that where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a a District Court, the decree may be executed in India as if it had been passed by the District Court. When a foreign judgment is sought to be executed under Section 44-A, it will be open to the judgment-debtor to take all objections which would have been open to him under Section 13 if a suit had been filed on such judgment. The fact that out of six exceptions there has been due compliance with some of the conditions and there has been no violation of some of the exceptions is of no avail. The decree can be executed under Section 44-A only if all the conditions of Section 13(a) to (f) are satisfied.

CHILD CUSTODY AND FOREIGN JUDGMENTS

In Ruchi Majoo v. Sanjeev Majoo – The court held that repatriation of child on the principle of comity of courts is not always desirable; It was reiterated that the primary consideration is the welfare of minor – Father not seriously grudging mother getting custody of minor but wanting them to return to USA, and father having contracted a second marriage – On father’s allegation, Court in USA framing charges of abduction against mother – District Court, Delhi granting custody of minor to mother – Child being happy with his studies and surroundings in Delhi where he had been living for three years – Child being unhappy with his father’s attitude – Mother not wanting to go back to USA because of alleged past traumatic experience –

Held, repatriation of minor to USA, on principle of “comity of courts” does not appear to be an acceptable option worthy of being exercised at this stage – Interest and welfare of the minor being paramount, a competent court in India is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication – Respondent’s case that the minor was removed from jurisdiction of American courts in contravention of orders passed by them, is not factually correct – Order by American Court was passed after father had sent his child to Delhi. (Courtesy SCC)

Hence in this case the court did not accept the foreign court’s order concerning child custody as conclusive and binding.

However, in another case, the balance tilted the other side and the court considered the custody order conclusive –

In Surya Vadanan versus State of T.N & Order (2015), A Supreme Court Bench comprising of Justice M.B. Lokur and Justice U.U. Lalit has held that in a case where there is a pre-existing order of a foreign court of competent jurisdiction to decide whether a child should be repatriated to the foreign country and the domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. The husband in this case was a citizen and resident of U.K. while the wife is a resident and citizen of India. Four years after the marriage, the wife acquired British citizenship and a British passport. They bore 2 daughters out of the wedlock. After experiencing matrimonial problems, the wife returned to India with the daughters and filed a petition under Section 13(1) (i-a) of the Hindu Marriage Act, seeking divorce. An application for custody was also filed by the wife. Subsequently, the husband decided to initiate legal action and petitioned the High Court of Justice in U.K. for making the children as wards of the court. It seems that along with this petition, he also annexed documents to indicate (i) that he had paid the fees of the children for a private school in U.K. with the intention that the children would continue their studies in U.K. (ii) that the children had left the school without information that perhaps they would not be returning to continue their studies. On 13th November, 2012 the High Court of Justice passed an order making the children wards of the court “during their minority or until such time as this provision of this order is varied or alternatively discharged by the further order of the court” and requiring the wife to return the children to the jurisdiction of the foreign court. Another order was passed by the foreign Court, renewing its request to the administrative authorities of the British Government in India and the judicial and administrative authorities in India for assistance for repatriation of the wards of the court to England and Wales, the country of their habitual residence. A Writ of habeas corpus was rejected by the Madras High Court. The Madras High Court, in its decision, took the view that the welfare of the children (and not the legal right of either of the parties) was of paramount importance. On facts, the High Court was of opinion that since the children were in the custody of the mother and she was their legal guardian, it could not be said that the custody was illegal in any manner.

The Court was concerned with two principles in the present matter. They are (i) The principle of comity of courts and (ii) The principle of the best interests and the welfare of the child. These principles have been referred to “contrasting principles of law” but the Court noted that they are not ‘contrasting’ in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case.

The Court then went on to observe that the “most intimate contact” doctrine and the “closest concern” doctrine of Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. According to the Court, it is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind. It also stated that there is no reason why the principle of “comity of Courts” should be jettisoned, except for special and compelling reasons. The Court hence observed, “No doubt we expect foreign courts to respect the orders passed by courts in India and so there is no justifiable reason why domestic courts should not reciprocate and respect orders passed by foreign courts.” “If the reluctance to grant respect to an interim or an interlocutory order is extrapolated into the domestic sphere, there may well be situations where a Family Court in one State declines to respect an interim or an interlocutory order of a Family Court in another State on the ground of best interests and welfare of the child,” it added. The Court also stated that there may be situations where an interim or an interlocutory order of a foreign court may be ignored. What needs to be considered is to determine, prima facie, that the foreign court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign court exercises jurisdiction. The Court further added a word of caution, stating that since there is no finality to an interlocutory order, it would merely have a persuasive value for a penalizing result. The Court hence directed that the mother should take the children to UK in their summer vacations and comply with the order of the foreign Court. The cost of litigation would be borne by the husband. In case the mother does not comply with the Court’s orders, the father was directed to take the children to U.K. for further proceedings in the High Court of Justice.

Comment : It is therefore clear that the diverging viewpoints, and the law in this regard is still evolving.

ANTI SUIT INJUNCTIONS IN MATRIMONIAL CASES

Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside it’s jurisdiction. Such orders are not passed at the drop of a hat, because they involve a court impinging on the jurisdiction of another court, which is not entertained very easily. The Supreme Court of India in Modi Entertainment Network v WSG Cricket Pte Ltd, held that in exercising discretion to grant an anti-suit injunction, the Court must be satisfied of the following aspects, (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the Court; (b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity- respect for the Court in which commencement or continuance of action or proceeding is sought to be restrained- must be borne in mind.

In Padmini Hindupur vs. Abhijit S. Bellur, The Hon’ble Delhi High Court, granted an anti-suit injunction in favour of the wife against the husband, restraining the husband from prosecuting divorce petition in the foreign court.

On the issue of wife whether to be held entitled to the relief prayed for by her i.e. the grant of an anti suit interim injunction, it was noted that Section 13 of the CPC deals with the recognition of a foreign judgment. It deals with the various alternatives under which a foreign decree may not be recognized by an Indian Court; until and unless, the foreign decree is in conformity with the public policy which is equity and good conscience, such a decree may not been recognized. The provision clearly says that a foreign judgment not been given on merits of the case will not be recognized by the Courts in India. Unless the party after service voluntarily and unconditionally submits himself/herself to the jurisdiction of the Court and contests the claim, or agrees to the passing of the decree with or without submitting to the jurisdiction of the Court it should not be considered to be a decision which was rendered on the merits of the case. The wife as per communication to Court in the USA was always aggrieved by the jurisdiction of the US Court and she had even lodged her protest at the very first opportunity.

However, Court while considering a prayer for grant of an anti-suit injunction has to consider that if the injunction is declined, the ends of justice would be defeated and injustice would be perpetuated. Then, the Court should consider the issue of forum conveniens – in case there is more than one forum available, the Court in the exercise of its discretion while granting an anti-suit injunction will examine as to which is the most appropriate forum (forum conveniens) having regard to the convenience of the parties. The Court may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens.

It was further held that the principles governing the grant of anti-suit injunction being essentially an equitable relief, the Courts in India has the powers to issue anti-suit injunction to a party over whom it has personal jurisdiction in an appropriate case because the Courts of equity exercise jurisdiction in personam.

It was accordingly held that the present would be a forum of inconvenience for the wife to submit herself to the US Court. She having lodged her protest in regard to jurisdiction of US Court, there was no suppression or concealment of facts and thus she was entitled to the equitable relief as prayed for.

**

In another case of Nidhi Prakash versus Rajneesh Verma (2013) Delhi High Court again granted an ex-parte interim anti suit injunction restraining the husband from proceeding with the divorce petition at Texas.

Therefore, it is apparent that though courts are generally loath to grant anti-suit injunctions in purely commercial matters, such injunctions are generally granted in family law cases. However, such an injunction can be resisted on the grounds : of submission to jurisdiction, inequitable conduct, suppression of material facts etc.

It is apparent from this discussion that the law in this field is in a constant state of flux and evolving (or one may say, meandering) each day.
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Issues relating to Electronic Evidence : Certificate 65B, proof of email, sms, facebook, whatsapp, call details, bank statements in Court.

May 12th, 2017
- Issues
- How to prove an email in a court case ?;
- What is the manner in which a voice/video recording is to be led before the court and proved in evidence ?;
- How to prove electronically maintained Bank Statements ?;
- How to prove a Facebook, Twitter post, a WhatsApp message or an SMS ?;
- The proof of Call Detail Records in a court case ?
These are some questions that the courts are faced today, almost on an everyday basis. The use of computers is all-pervasive now. Almost all data is digital these days and most communication is exchanged electronically through SMS,Email, Whatsapp, Facebook, Twitter etc. In Civil as well as Criminal Cases, the courts are frequently called upon to rule on whether ‘electronic evidence is admissible or not’. Practice has shown that this is by no means an easy question to answer.

This write-up is an attempt to simplify the complex law relating to admissibility of electronic evidence and to touch briefly upon some of the most pressing issues, as discussed above.
1. The First principles of law
First, a few words about how the law embraced the IT revolution. The IT Act, 2000 has given sanctity to electronic records and the definition of ‘evidence’ in the Evidence Act, has been expanded to include electronic records. Data in electronic form has to be stored and preserved. An electronic record, simply put, is information/data recorded in an electronic form. Therefore, data recorded on a hard drive, pen drive, CD, DVD, or even the Internet qualifies as ‘electronic record’. An image file on your pen drive, or a photo clicked on your phone or a WhatsApp message on your phone memory or service provider’s server are all ‘electronic records’.

The original device in such a case which produced the electronic record is ‘primary evidence’. For eg : The sound recorder/CCTV Camera and attached hard disk used to record a video/audio clip are primary evidence of its contents. Another example may be huge servers where data is created and stored. Such servers are what qualifies as ‘primary evidence’. The general rule of law of evidence is that when primary evidence is available, secondary evidence is not admissible. However, the same principle cannot be strictly applied in cases of electronic records. Large Servers/Original devices cannot be expected to be brought before the court in each case. Therefore, secondary evidence in the form of a output such as Printout or soft copy in the form of CD/DVD etc is admissible in a court of law, provided certain conditions are met.

These conditions are laid down with a view to ensure that the secondary evidence is true and accurate representation of the original electronic record and has not been tampered with, in any manner.
1. What is Section 65B of the Evidence Act ?
Section 65-B of Indian Evidence Act, simply put, lays down the conditions and procedure of proof of an electronic record in a court of law. Section 65B is important insofar as it recognises that the original primary evidence of electronic record cannot be expected to be brought before the court and even if it is, the same being in binary form (Binary is the language that the computer/machine understands – where everything is stored in a string of zeros and ones!) the same cannot be understood by the court. The net effect of Section 65B is that the output in the form of a printout or data copied on CD/DVD etc produced by the computer is rendered admissible in the court, provided certain conditions are met. This is the import of Section 65B(1).

Section 65B(2) lays down certain conditions relating to integrity of the data. These conditions are there to ensure that :

a) there has been no unauthorised access to the data in question;

b) the computer was functioning properly and therefore the reproduction of data is accurate and genuine.

3. Certificate u/s 65B of the Evidence Act : Who is to issue, and what is that it is supposed to contain ?

The output of a electronic record, in order to be admissible in a court of law, has to be filed along with a certificate u/s 65B(4) of the Evidence Act. Such a certificate has to be issued by a person occupying responsible position with respect to the computer from which the data is produced. The certificate has to certify the conditions laid down in S. 65B(2) relating to integrity of data and computer system; the manner of production of the output of electronic record, identity and particulars of device used (including the original device). The entire idea behind the certificate is to ensure, once again, integrity of source, authenticity of data, so that the court can place reliance on it. This is important since electronic data is more prone to tampering and alteration.

Questions such as : How the certificate is to be prepared, who is to issue the certificate, and the exact contents of the certificate, will depend on the specific nature of electronic record that is sought to be proved. For instance : A image taken with the mobile phone camera, will be first copied onto the laptop and thereafter printed out. In such a case, the certificate will have to mention the process of transfer and printing so as to prove ‘integrity in the chain of movement’ and will have to be prepared and given by the operator of the mobile phone and the laptop. It has to compulsorily conform to the conditions in S.65B(2) & (4). It has to identify the original mobile phone and the other devices used in preparing the output. In such cases, preserving the original is also extremely necessary. Computer Forensic Experts advise the retention/preservation of the original in a dust/transmission resistant environment, making a clone copy of the contents therein (after using devices such as write-blocker to ensure no data is written onto the device during access and process of copying), and access to the document through the clone/mirror copy only. Accessing the data on the device itself may make the authenticity/integrity of the document suspect and may make it open to challenge. Taking the ‘Hash Value’ of the device at the time of seizure (Simply put, a Hash Value is a specific string of numbers that each file produces; any change in the file, even a space or a comma, leads to a total change of hash value; this algorithm is used to preserve the document in original shape and ensure no tampering takes place). Taking the hash value at the time of seizure of electronic evidence and thereafter, at the time of evidence before the court convinces the court as to non-tampering with the device. (The different forensic practices used to guarantee evidentiary value, in greater details, will be discussed in a different post of ours).

Things get slightly more complicated when information over the internet is sought to be proved. One view is that the person taking the printout from a website/email – is to give the certificate; the other view is that the person incharge and responsible for the server where the information resides is to give the certificate. The latter option spells great trouble and will render most electronic information extremely difficult to be proved as most servers are located in distant locations, spread over a large geographical area ,under managerial control of different personnel, and most importantly outside the jurisdiction of our courts.

The question on as to who is to issue the certificate is also important, and assumes even greater importance in case of proof of Call Detail Records etc.

By virtue of decision of Delhi High Court in Kundan Singh Vs. The State [MANU/DE/3674/2015], the doctrine of hearsay, in its application to proof of electronic evidence, has been limited a great deal. The court has recognised the fact that in cases of huge information contained across various servers, which is sought to be proved years later, it may not be possible to procure the evidence/certificate issued by persons incharge of the computer system at that time. In such cases, people who have subsequently taken over charge of such computers can issue certificate u/s 65B Indian Evidence Act. Evidence in such cases cannot be eschewed merely on the ground of hearsay. Therefore, what follows is that a person holding a responsible official position in relation to the operation of the relevant device/activities can give a certificate u/s 65B in relation to CCTV Records/CDR Etc. This flows from the fact that the fact that system was working properly at a relevant time is something that can be gauged from system logs, and is not something that is strictly within personal knowledge of one individual.

Another peculiar situation that may be visualised is when the output of an electronic record is seized from the Accused; for eg, at the time of arrest, the accused is made to take a printout from his email account; whether in such a case it is the accused who can be made to issue the certificate; and if yes, whether the same amounts to ‘self incrimination’ and resultantly, runs foul of Article 20(3) of the Constitution. Conversely, can one also say that this printout is a ‘fact discovered’ for the purpose of Section 27 of the Evidence Act, and therefore, admissible in evidence even de hors Section 65B of the Evidence Act. The jury is out on this one, and a authoritative decision of the court is awaited. Till then, there are arguments for and against each position.
1. Is the certificate u/s 65B(4) of Evidence Act mandatory for reception of electronic evidence ?
In this regard, the earlier view^_ was that compliance with S.65B of the Evidence Act is not an absolute requirement of law and Secondary evidence, in terms of Section 65 IEA can still be led in proof of a electronic record. However, the Supreme Court in ANVAR P.V. VS. P.K. BASHEER AND OTHERS [MANU/SC/0834/2014] has ruled that a certificate u/s 65B is compulsory for admission of electronic evidence and over ruled Navjot Sandhu(supra) to that extent. The Court observed that Section 65B of the Evidence Act begins with a ‘non-obstante clause’ and would override the general law on secondary evidence, as laid down under Section 63 and 65 of the Evidence Act. Section 65B is a special provision concerning proof of electronic records. The very caption of S.65A read with S. 59 and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed u/s 65B of the IEA, 1872. This is a complete code in itself and being a special law, the general law under sections 63 and 65 has to yield. (Generalia specialibus non derogant : special law will always prevail over the general law.) Therefore, Section 63 and Section 65 of the Evidence Act have no application to the secondary evidence of the electronic evidence and same shall be wholly governed by the Section 65A and 65B of the Evidence Act. No expert evidence/oral evidence can be led in absence of the certificate. The case concerned proof of video footage relating to an election malpractice matter. The court held that the output in the form of CD/DVD/Pen drive was inadmissible in absence of the certificate; however, if the original recorder/hard drive attached to CCTV is led in evidence, the same can be received even without the certificate as it will be primary evidence itself. Also see : Kishan Tripathi Vs. The State (MANU/DE/0434/2016), where it was held that Original Hard Disk containing CCTV Footage is a primary evidence u/s 62 EA.

This position has been reaffirmed by the Hon’ble Supreme Court recently in Harpal Singh @ Chhota Vs. State Of Punjab (CRIMINAL APPEAL NO. 2539 OF 2014) Date of Decision : 21.11.2016.

In cases relating to voice/video recording : the absence of tampering, identity of voice (confirmed through ‘voice samples’ taken before the magistrate and subsequent examination through Forensic Labs) is extremely crucial.

Another contentious question in this regard that came up in a series of cases was : whether a witness who is seeking to prove an electronic record can be allowed to depose in the court in his examination in chief as to the conditions of S.65B as sufficient compliance. The answer to this question has to be ‘No’. When the statute demands something to be done in a specific manner, it has to be done in that manner alone and the procedure cannot be circumvented. Therefore, the requirement of certificate u/s 65B cannot be satisfied by a witness deposing as to these conditions, in the examination in chief. This is the import in the decision of Jagdeo Singh and Ors. Vs. The State (MANU/DE/0376/2015)
1. Proof of SMS
In case of proof of SMS, the original handset can be led in evidence as primary evidence. In case of extracted copy of SMS, certificate u/s 65B of the IEA becomes essential. In both these cases, it is of extreme significance to first of all – clone the mobile phone device, take a backup and operate on the backup copy only. Any alteration of data on the mobile phone will seriously undermine the evidentiary value of the SMS.
1. Proof of Email
If the email rests on a web based email facility like gmail/yahoo etc – A printout of the email (alongwith meta data/header information (required u/s 7 of the IT Act) has to be accompanied with a certificate u/s 65B of the Evidence Act, given by the person operating the account and taking the printout. Section 88A of the Evidence Act also provides for certain presumptions with respect to receipt of emails, which may be useful in proof of email correspondences.

In case of server based emails, the certificate ought to come from the incharge of the computer servers.

In all these cases, the preservation of what is called ‘meta-data’ is extremely crucial. Simply put, meta data is data about data and contains information relating to date/time/origin/authenticity/access date of the data, which goes on to strengthen, or destroy its evidentiary or believability quotient. (More on this on our piece of digital forensics!)

There might be one more provision that may become important insofar as emails are concerned :-

Section 88A – Presumption as to Electronic Messages. It reads :

“The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.” .

Simply put, the presumption in this section is to the effect that data sent by email from X computer corresponds to data received at Y computer. The court may not draw the presumption, or the same may be rebutted, being a rebuttable presumption of fact. Besides this, there is no presumption as to the identity of the sender as the section makes clear.

In addition to this, under section 65B it has to be proved that the computer during the relevant period was in the lawful control of the person proving the email [Babu Ram Aggarwal & Anr. Vs. Krishan Kumar Bhatnagar & Ors. 2013 IIAD (Delhi) 441].

In Abdul Rahaman Kunji Vs. The State of West Bengal [MANU/WB/0828/2014] the Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such procedure to download and print the same is sufficient to prove the electronic communication.
1. Proof of Bank Statements, whether compliance of S.65B essential ?
- This is governed by a special law. As per the Bankers Book Evidence Act, (Sec 2A of BBEA), the following three certificates are required to prove a bank statement :-
  - A certificate regarding authenticity of entry/printout by the principal accountant or branch manager.
  - Authenticity certificate from person in-charge of computer system regarding:-
- Details of Computer System
- Process of Data Storage
- Safeguard to protect Computer System and Data
- the fact that such computer system operated properly at the material time, he was provided with all the relevant data and the printout in question.
1. Whether a certificate u/s 65B conclusively proves the facts contained in the electronic record and amounts to truth ?
The answer has to be a resounding ‘No’. S.65B deals with conditions precedent for admission of the electronic evidence. Compliance of S.65B Evidence Act allows the court to read the document. The court still has to examine relevancy, genuineness, veracity and reliability of the document. The probative worth, that is to say, whether the document has an actual bearing on the case or not or how much weight is to be attached to it, is also to be examined independently.
1. Whether a Certificate u/s 65B of the Evidence Act has to be mandatorily filed along with the printout/CD, or can the same be filed subsequently as well?
The earlier view was that the certificate had to be filed alongside the print of electronic record, and not thereafter. However, after the Delhi High Court Judgment in Kundan Singh Vs. The State [MANU/DE/3674/2015], the position in law has been clarified : A certificate u/s 65B can be filed even thereafter, and need not be filed alongside. The witness who had tendered the electronic record in evidence can be recalled u/s 311 of the CrPC for the purpose of producing the certificate. The underlying basis of this view is that initial lapse on the part of the party should not detain the court from having the required evidence before it, which will assist the court in discovery of the truth. The court shall seek all evidence before it which is essential for a just decision of the case. All endeavour is to be made to decide the case on merits, rather than exclude what may be important evidence on technical considerations.

What follows is that the certificate can be filed even after filing of chargesheet, and can form part of a supplementary chargesheet u/s 173(8) of the CrPC.

Even the Rajasthan High Court in Paras Jain and Ors. Vs. State of Rajasthan, [MANU/RH/1150/2015] has held that : non filing of certificate u/s 65B Evidence Act is not an incurable irregularity and can be rectified later on.
1. Whether an objection as to non compliance of S.65B of the Evidence Act can be waived or conceded ?
- Though there is no direct decision on this point, but if the opposite party admits a printout/CD/DVD etc and does not dispute it, in such a situation, admission acts as waiver of proof and compliance of S.65B IEA to prove the same is not required. An objection as to mode of proof can be waived if not taken at the appropriate stage. Shamsher Singh Verma Vs. State of Haryana [MANU/SC/1345/2015]
- Conclusion
Law relating to proof of electronic evidence is in a state of huge flux in view of rapid technological advancements. The law is struggling to keep pace with them. Some questions relating to time of filing of certificate have been answered, while some relating to the authorship of the certificate are still to be worked on and authoritative precedent on these points is required.
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Issues relating to Electronic Evidence – Admissibility, Section 65B certificate and other frequently asked questions.

May 12th, 2017
Issues relating to Electronic Evidence
1. What is an Electronic Record ?
2. Types of Electronic Records.
3. Is an Electronic Record a ‘document’ ?
4. Is a ’Hard Drive’ a document ?
  - Admissibility of Hard Disk
5. Proof of Electronic Record.
6. Section 65B of the Evidence Act
7. Effect of use of Non Obstante Clause in S.65B(1);
8. Conditions : Section 65B(2) (a) & (c) related to computer’s integrity;
9. What if Computer Malfunctions ?
10. Conditions in Section 65B(2) (b) & (d) relating to the informational ‘chain of integrity’;
11. Section 65B(4) Certificate
12. Whether Mandatory ?
13. Oral Testimony as to S.65B – whether sufficient compliance of Section 65B(4) ?
14. Who is to file the certificate ?
15. Stage of filing – Can the certificate u/s 65B(4) be received at a later stage, that is to say, after filing of the electronic evidence on record in the form of an output ?
16. Whether judicial admission by the opposite party as to the electronic record dispenses with formal proof and compliance of Section 65B of the IEA ?
17. E-Contract – territorial jurisdiction;
18. Challenging issues in interface with Criminal Law.
1. What is an Electronic Record ?
2(t) of the IT Act “Electronic Record” means Data, Record or Data Generated, Image or Sound Stored, Received or Sent in an Electronic Form or Micro Film or Computer Generated Micro fiche;
1. Types of Electronic Record.
Pen Drive, CD, DVD, Whatsapp message, email, SMS, Video, image file etc.
1. Electronic Records as ‘documents’ for the purpose of Evidence Act.
Section 3 of Indian Evidence Act.

“Evidence” – ‘Evidence’ means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

Such statements are called oral evidence

(2) all documents including electronic records produced for the inspection of the Court;

such documents are called documentary evidence.
1. Whether a ‘Hard Disk’ is a document ?
Answer is Yes.

Dharmabir Vs. CBI (2008) DHC –
- New Hard Disk (blank slate) is merely a storage device.
- Hard Disk once data/information is written on it, becomes a electronic record. (S.2(t) of the IT Act)
- From Electronic Record to document (S.3 IEA)
- Two Levels of Electronic Record : Active memory & Subcutaneous memory;
- Accused entitled to both.
- Right of the accused under sections 207 (v) and 173(5)(a) of the Cr.P.C.
1. Proof of Electronic Record : Primary – Secondary
2. Primary Evidence – (eg : Original Device/Electronic Record) directly admissible u/s 62 of the IEA. (Kishan Tripathi Vs. The State, Delhi High Court – 2016 held : Original Hard Disk containing CCTV Footage = primary evidence u/s 62 IEA
3. Secondary Evidence (Output) –Admissible u/s 65B of the IEA.
1. CONDITIONS AS TO ADMISSIBILITY OF ELECTRONIC EVIDENCE IN COURT
Section 65B(1)

Notwithstanding anything contained in this Act, any information contained in an electronic record
- which is printed on a paper;
- stored, recorded or copied in optical or magnetic media produced by a computer
- shall be deemed to be also a document, if the conditions mentioned in this section are satisfied.
  - in relation to the information and
  - computer in question and
- shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
1. Use of Non Obstante clause in S.65B(1)
“Notwithstanding anything contained in this Act” ~ See class notes for detailed discussion.
1. 65B(2): Conditions (a) & (c)
a) The computer from which the record is generated was regularly used to store or process information in respect of activity regularly carried on by a person having lawful control over the period, and relates to the period over which the computer was regularly used;

c) The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy;

Broadly related to Computer’s integrity and Lawful Control
1. What if computer is malfunctioning ?
Bank ATM – withdrawal case !

Sri. P. Padmanabh Vs. Syndicate Bank Limited, 2008 – Karnataka High Court.

If Computer is malfunctioning – output may become inadmissible.

ATM link lost > Person took out more money than he was entitled > Bank alleged defendant took advantage of computer malfunction > sued for recovery of that amount > in evidence, relied on electronic evidence of withdrawal of money > held : when the ATM/Computer itself was admittedly malfunctioning, output not admissible in evidence.

Therefore, the proper functioning of the computer > accuracy of data > chain of integrity is extremely important.
1. 65B(2): Conditions (b) & (d)
b) Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer;

d) Information reproduced is such as is fed into computer in the ordinary course of activity.

Broadly related to informational integrity
1. Certificate u/s Sec. 65B(4): Certificate :
- identifying the electronic record containing the statement and describing the manner in which it was produced;
- giving the particulars of any device involved in the production of that electronic record
- dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
1. Whether certificate u/s 65B Evidence Act is mandatory ?
- Earlier view – No (State (NCT of Delhi) v. Navjot Sandhu (2005) SC)
- Current view – Yes. ((ANVAR P.V. VS. P.K. BASHEER AND OTHERS – 2014 (SC) Navjot Sandhu stands overruled in this context by PV Anvar.
- See Dictation Notes for detailed discussion.
- Generalia Specialibus Non Derogant
1. Oral Deposition as to conditions of S.65B(2) – whether sufficient compliance ?
Oral Statement in court as to compliance of Section 65B of the IEA will not suffice and certificate u/s 65B is mandatory. Jagdeo Singh and Ors. Vs. The State (2015) Delhi High Court

Principle : When something is categorically prescribed to be done in law in a certain manner, it has to be done in that manner alone and no other.
1. Who is Competent to issue the certificate ?
After mentioning the contents of the certificate, the latter part of Section 65B(4) reads as under :-
- and purporting to be signed by a person.
- occupying a responsible official position in relation to the operation of the relevant device or
- the management of the relevant activities (whichever is appropriate)
- shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
Section 65B(4) Certificate and the Doctrine of Hearsay
- In cases where information as to proper functioning of computer system/server is derived from system logs, made in the ordinary course of business, a witness deriving his knowledge from such written records can produce certificate u/s 65B(4) and prove the electronic record and his testimony is not barred by doctrine of hearsay.
- This is premised on the fact that : Proper functioning of the computer in such cases is not a matter of personal testimonial knowledge but knowledge derived from records maintained in the usual course of working of the system.
- Doctrine of hearsay primarily applies in the domain of oral evidence.
- Doctrine of hearsay limited in its application in cases of Electronic Evidence. (Kundan Singh Vs. The State (2015) Delhi High Court)
1. Stage of filing of certificate u/s 65B(4) ? Is it mandatory to file it alongside the electronic evidence output or can it be filed later ?
- Certificate u/s 65B IEA can be filed even after receipt of document/Electronic evidence on record.
- Court may invoke Sections 91, 311,391 of the CrPC to facilitate filing of certificate. Investigating authority (police) can also file the certificate alongwith a supplementary police report u/s 173(8) of the CrPC.
- In civil proceedings, Ord. XVI R. 14, Ord. XVIII R.17 r/w 151 CPC can be used to recall a witness for the purpose of certificate.
(See : Kundan Singh Vs. The State (2015) Delhi High Court & Paras Jain and Ors. Vs. State of Rajasthan,(2015) Raj. HC).
1. Whether judicial admission by the opposite party as to the electronic record dispenses with formal proof and compliance of Section 65B of the IEA ?
Judicial Admission by the Witness as to electronic record waives the requirement of formal proof and conditions of Section 65B IEA need not be complied with. (Shamsher Singh Verma Vs. State of Haryana, 2015 – SC)
1. E-Contract – territorial jurisdiction;
Section 13(3) of the IT Act reads as under :-

(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.

P.R. Transport Agency vs. Union of India & others – 2005 SCC OnLine All 880 Allahabad High Court.
- No expert opinion can be led w.r.t an electronic evidence without first complying with Section 65B of the IEA. (See Anvar P.V v. P K Basheer, 2014 SC)
1. Electronic Evidence Vis-à-vis Criminal Law and the Constitution.
  - Section 27 of IEA or Section 65B – which one is to prevail ?
  - Certificate from the Accused u/s 65B(4) IEA – is it a violation of Article 20(3) of the Indian Constitution ?
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Grant of Mandatory Injunction – Factors

April 3rd, 2012
Supreme Court of India

Makers Devt.Services P.Ltd. vs M. Visvesvaraya Indusl.Res.& … on 14 November, 2011

Suit for Specific Performance filed by Plaintiff – Pending Suit, Plaintiff sought for interim injunction restraining Defendant dealing with suit property and to permit Plaintiff to put up further construction – Interim relief to permit further construction sought by Plaintiff, if granted, would create enormous difficulty to Defendant in event of dismissal of main Suit later – Interim relief sought by Plaintiff is in nature of mandatory injunction and not mere prohibitory order – Same cannot be granted – Courts while granting injunction must take into consideration conduct of parties – Order of Division Bench refusing to grant interim relief in nature of positive mandatory injunction cannot be faulted with.

Bench: P. Sathasivam, J. Chelameswar

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9709 OF 2011

(Arising out of SLP (C) No. 22276 of 2011

Makers Development Services Pvt. Ltd. …. Appellant (s) Versus

M. Visvesvaraya Industrial Research and

Development Centre …. Respondent(s) WITH

CIVIL APPEAL NO. 9710 OF 2011

(Arising out of SLP (C) No. 25972 of 2011)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted in both the Special Leave Petitions. Both these appeals were heard together as they arose out of the same set of facts and common questions of law were involved. 2) SLP (C) No. 22276 of 2011 has been filed by the Makers Development Services Pvt. Ltd. against the order dated 28.06.2011 passed by the Division Bench of the Bombay High 1

Court in Appeal No. 280 of 2008 challenging the order dated 25.04.2008 passed by the learned Single Judge in Notice of Motion No. 3499 of 2007 in Suit No. 2618 of 2007 declining the reliefs claimed in prayer clauses (a) to (f) pending final disposal of the Suit and SLP (C) No. 25972 of 2011 has been filed by M. Visvesvaraya Industrial Research and Development Centre against the same order in Appeal No. 289 of 2008 in Notice of Motion No. 3499 of 2007 in Suit No. 2618 of 2007 granting relief in terms of prayer clause (g).

3) Brief facts:

a) Makers Development Services Pvt. Ltd.-the appellant herein (Original Plaintiff) is a Company registered under the Companies Act, 1956 engaged in the business of development, building, including the construction and management of hotels and developments pertaining to other hospitality services and management of properties. M. Visvesvaraya Industrial Research and Development Centre-the respondent herein (Original Defendant) is a Company incorporated under the Companies Act, 1956 and is engaged, inter alia, in 2

promoting, establishing, conducting and undertaking scientific research.

b) The Government of Maharashtra, by Resolutions dated 16.10.1970 and 18.11.1974, had granted lease of certain plots of land to the defendant-Company at Backbay Reclamation, Cuffe Parade, Mumbai, who was entitled and authorized to enter into transactions with third parties in respect of the said land. A portion of that land admeasuring 13,326 sq. mts. which forms a part of the larger land held by the defendant- Company is the subject-matter of the present case. c) An agreement dated 10.11.1980 was entered into between the parties for construction of a composite hotel complex consisting of a Hotel Building, a Convention Centre and an Exhibition Centre on the Suit Land (Tower No.2) and the plaintiff would be granted lease of Hotel (exclusive of the Convention and Exhibition Centre) for 60 years with an option of renewal of lease. This agreement came to be modified from time to time.

3

d) Pursuant to the Agreement, the respondent put the appellant in possession of the Suit Land on 16.07.1990, which continues to remain with the appellant till date. e) Since the appellant could not complete the work and due to disputes and differences, the respondent, on 31.07.2007, affixed a notice on the premises notifying all concerned including the appellant to move out of the property and instructed its security persons not to permit the appellant to enter upon the said property.

f) On 04.08.2007, the appellant filed a suit for injunction before the City Civil Court, Mumbai seeking interim and final reliefs restraining the respondent from taking any illegal steps. By order dated 06.08.2007, the learned Judge held that till the substantive suit is filed by the appellant, the impugned notice dated 31.07.2007 will not be acted upon by the defendants upto and inclusive of 17.09.2007.

g) On 10.09.2007, the appellant moved a Notice of Motion No. 3499 of 2007 in a Suit being No. 2618 of 2007 before the learned Single Judge of the Bombay High Court for a decree of specific performance, inter alia, praying for a permanent 4

injunction restraining the respondent from dispossessing the appellant. By ad-interim order dated 14.09.2007, the assurance given in the City Civil Court was directed to be observed and the respondent was directed not to create any third party rights pending the Notice of Motion. During the pendency of the suit, by letter dated 19.11.2007, the respondent terminated the said Agreement. The learned single Judge, after referring the documents and affidavits on record, rejected prayer clauses (a) to (f) of the Notice of Motion and granted limited interim relief with regard to prayer clause (g) in favour of the appellant.

h) Aggrieved by the order of the learned single Judge, the appellant preferred an appeal being Appeal No. 280 of 2008 before the Division Bench of the High Court. With regard to the limited relief granted by the learned single Judge, the respondent also filed an appeal being Appeal No. 289 of 2008 before the Division Bench of the High Court.

i) The Division Bench, by a common judgment, upheld the order of the learned single Judge and dismissed both the appeals. Challenging the order of the Division Bench of the 5

High Court, the appellant and the respondent filed separate special leave petitions before this Court.

4) Heard Mr. Shyam Divan, learned senior counsel for the appellant and Mr. Mukul Rohatgi & Mr. Praveen Samdani, learned senior counsel for the respondent.

5) The points for consideration in these appeals are:- a) Whether the appellant/plaintiff has made out a case for grant of injunction in its entirety, i.e. prayer clauses (a) to (g)?

b) Whether learned single Judge as well as Division Bench of the High Court committed an error in granting limited relief in respect of clause (g)?

6) It is settled law that while passing an interim order of injunction under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, the Court is required to consider three basic principles, namely, a) prima facie case, b) balance of convenience and inconvenience and c) irreparable loss and injury. In addition to the above mentioned three basic principles, a court, while granting injunction must also take into consideration the conduct of the parties. It is also 6

established law that the Court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the court must make all endeavours to protect the interest of the parties.

7) With the above principles, let us consider the claim of both the parties.

8) The appellant/plaintiff, who filed Suit No. 2618 of 2007 on the file of original side of the High Court of Bombay prayed for the following interim reliefs pending hearing and final disposal of the said suit:

"(a) That pending the hearing and final disposal of the Suit, the Defendant be ordered and directed to do, sign, execute, deliver and register all such acts, deeds, matters writings, documents, authorities papers, plans, sanctions and things as may be necessary to enable the Plaintiff to continue construction on the Suit Land in terms of the Suit Contract;

(b) That pending the hearing and final disposal of the Suit, the Defendant by itself, its servants and agents or any person or persons claiming by, from, through or under them be restrained by an order and injunction of this Court from dispossessing the Plaintiff or removing the authorized representatives, employees, staff, workers and labourers of the Plaintiff and their respective family member or their belongings and articles or the construction materials, equipment and other belongings of the Plaintiff from the Suit Land;

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(c) That pending the hearing and final disposal of the Suit, it be ordered and decreed that the Defendant to allow the Plaintiff to continue construction on the Suit Land and unhindered access to the Suit Land and allow ingress to and egress from the Suit Land, by the Plaintiff, its representatives, employees and contract labour as also for all construction materials and equipment without in any manner, directly or indirectly, obstructing or hindering the Plaintiff.

(d) That pending the hearing and final disposal of the Suit, the Defendant by itself, its servants and agents or any person or persons claiming by, from, though or under them be restrained by an order and injunction of this Court from in any manner restraining, preventing impending or obstructing implementation of the Suit Contract or construction on the Suit Land or access to and ingress to and egress from the Suit Land, of the Plaintiff or its authorized representatives, employees, workers, labourers and their respective family members or preventing, impeding or obstructing construction material or equipment of the Plaintiff from being brought on to the Suit land or in any manner, directly or indirectly, by any act of omission or commission, withholding or causing to be withheld essential utilities such as power and water supply to the Suit Land for construction by the Plaintiff;

(e) That pending the hearing and final disposal of the Suit, the Defendant by itself, its servants and agents or any person or persons claiming by, from, through or under them be restrained by an order and injunction of this Court from in any manner, whether directly or indirectly, revoking or acting on any purported revocation of the Letter of Authority granted by the Defendant to the Plaintiff or in any manner, whether directly or indirectly, hindering, impeding or obstructing construction on the Suit Land in terms of the Suit Land in terms of the Suit Contract;

(f) That pending the hearing and final disposal of the Suit, the Defendant by itself, its servants and agents or any person or persons claiming by, from, through or under them be restrained by an order and injunction of this Court from in any manner committing unlawful trespass or from in any manner intimidating the Plaintiff, its employees, workers, labourers and other agencies appointed by the Plaintiff; 8

(g) That pending the hearing and final disposal of the Suit, the Defendant by itself, its servants and agents or any person or persons claiming by, from, through or under them be restrained by an order and injunction of this Court from, in any manner, selling transferring, dealing with, disposing of, alienating encumbering or creating any third party rights or interest in, or entering into any agreement or arrangement with any one else in respect of the Suit Land or any part thereof;"

9) Among the above prayers for interim reliefs, the learned single Judge granted relief only in respect of prayer clause (g) that too with a condition, namely, except the words "dealing with". The learned single Judge on satisfying himself and after thorough scrutiny of the materials placed rejected the relief insofar as prayer clauses (a) to (f), which resulted in filing of above two appeals by the appellant and the defendant. It is the claim of the appellant/plaintiff that on the basis of the contract between the parties, the learned single Judge and the Division Bench should have granted an order permitting the appellant to carry on further construction especially when construction of about 80 ft. had already been raised by the appellant on the suit land. On the other hand, it is the case of the defendant that there is no existing agreement between the parties and the only point is that the parties have agreed to 9

enter into an agreement and, therefore, the learned single Judge as well as the Division bench were not justified even in granting interim order in terms of prayer (g).

10) Inasmuch as the main suit is pending, it would not be proper for this Court to delve into the matter and arrive at a categorical finding one way or other. Accordingly, we have to find out whether there is prima facie case and `balance of convenience’ in terms of principles mentioned above. 11) The finding of the learned single Judge about the construction of the building to the height of 80 ft. on the suit land by the appellant cannot be ignored. However, whether the defendant permitted the appellant to enter on the suit land and to carry on construction are all matters to be decided in the main suit. The limited relief granted in clause (g) by the learned single Judge is quite understandable, otherwise, it could be possible for the defendant to deal with the suit land with third parties or encumber it before the final disposal of the suit. However, as rightly observed by the learned single Judge as well as Division Bench, if other reliefs which we have already extracted above are granted, in the event of dismissal 1

of a suit, undoubtedly, it would create enormous difficulties for the defendant using the plot or land freely and without any difficulty. In other words, if the appellant was allowed to proceed with the construction on the suit land, in the event of dismissal of suit, the defendant cannot use the land in a different manner with the structure without undertaking an enormous exercise of demolishing the same. Further, what was claimed by the plaintiff was not a mere prohibitory order but prayed for positive mandatory injunction which, as rightly observed by the Division Bench, would permit the plaintiff to alter the status quo on the suit land on the date of the suit. 12) The learned single Judge as well as Division Bench on appreciation of entire materials rendered the factual finding that the balance of convenience is not in favour of granting such mandatory interim order as claimed in prayer clauses (a) to (f). It is relevant to point out that though the appellant had stated that it had started construction in the year 1996, even after the information by the defendant to the appellant in 2002 that the BEST had given their `no objection’ for the demolition of temporary receiving station and the appellant can proceed 1

with the demolition, however, the fact remains, the height of the construction was only 80 ft. which shows that from the year 2001 to 2007, the appellant had not carried on construction and there was no obstruction from the side of the defendant. In view of all these factual aspects and in the light of the stand of the defendant disputing the existence of the agreement, as rightly observed by the learned single Judge as well as Division Bench, further permission for construction or ancillary works cannot be granted during the pendency of the suit. We are satisfied that the learned single Judge was fully justified in granting limited relief in respect of prayer clause (g) and declined the other reliefs in clauses (a) to (f). The Division Bench was also fully justified in confirming the said limited order. Though learned senior counsel for the respondent has prayed for certain directions such as execution of a mortgage deed etc., for the same reasons mentioned above, we are not inclined to grant such relief as claimed. As observed earlier, at this stage, it is not desirable to go into all the details and render a specific finding which would undoubtedly affect the claim of both the parties in the main suit. On the other hand, 1

we are in entire agreement with the prima facie conclusion arrived at by the learned single Judge and the Division Bench. 13) Inasmuch as, as early as on 25.04.2008, the learned single Judge directed hearing of the suit be expedited, taking note of various other aspects/impediments highlighted by both the parties including construction of a protection/security wall on the sea side, we request the learned single Judge of the High Court to dispose of the suit being No. 2618 of 2007 as early as possible preferably within a period of nine months from the date of the receipt of the copy of this judgment. We also direct both the parties to cooperate with the court for early conclusion of the hearing as directed above. 14) In the light of the above discussion and reasonings, we find no merit in both the appeals, consequently, they are dismissed with no order as to costs.

……………….

…………………………J.

(P. SATHASIVAM)

………………………………………..J. (JASTI CHELAMESWAR)

NEW DELHI;

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NOVEMBER 14, 2011.

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Category: Civil Law

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