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TMI Blog2007 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant firstly objected by stating that there were two affidavits of the same witness, namely, Mr. Christian London, one filed on 3.12.2005 and the second on 2.2.2006. During the course of arguments, it was stated by learned counsel for the plaintiff that the document that the defendant is claiming to be an affidavit of Mr. Christian London filed on 2.2.2006 is in fact not an affidavit. A bare perusal of the said document shows that it is merely a certificate issued by Mr. Christian London. It does not even purport to have been made and signed on solemn affirmation. To this, learned counsel for the defendant countered by relying upon the index wherein the document had been described as an affidavit of Mr. Christian London. In my view, it is elementary that a statement, which is not made on solemn affirmation and does not even purport to be as made on solemn affirmation, cannot be treated as an affidavit. Mere description of the said document as an affidavit in the index does not make the said document an affidavit. This objection of the defendant is wholly frivolous and I reject the same. The second objection raised by the defendant's counsel is that the affidavit filed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing of additional documents by the plaintiff with the said affidavit was raised by the defendant for all this time even though the defendant has been served a copy of this affidavit along with all the documents attached to it on 3.12.2005 itself. The examination-in-chief by way of an affidavit of Mr. Christian London was filed in compliance with Order 18 Rule 4 CPC, which states that in every case the examination-in-chief of the witness shall be on affidavit and copies thereof shall be supplied to opposite party. The proviso to sub-rule 4 of Rule 4 states that, if any objection is raised during the recording of evidence before the Commissioner, the same shall be recorded by him and decided by the Court at the stage of arguments. Even before the affidavit is tendered by the witness during his appearance for cross-examination before the Commissioner or Court, it is open for the opposite party to raise its objections to the tendering of fresh documents. The affidavit or the documents filed therewith cannot be wholly ignored by the opposite party. The objection of the kind sought to be raised by the defendant in this particular case could well have been raised on the various d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.12.2005, in the aforesaid facts and circumstances amounts to a waiver by it of its objections. The defendant knew that the witness was specially coming from France for the recording of his evidence. He did not raise the objection when it could have been so raised earlier and waited for the witness to arrive. The conduct of the defendant is clearly designed to frustrate the progress of the trial and to inconvenience the plaintiff's witness. The fresh documents had been filed as early as on 3.12.2005 and the defendant has had notice of these documents since then. These documents are (i) the Notarised Power of Attorney, (ii) Certified copy of the plaintiffs copyright registration, (iii) Notarised copies of world wide registration certificates (iv) certified copies of court orders and (v) some literature/reports in respect of the plaintiffs copyright and trademark. The documents at Sl.Nos. (i) to (iv) above are of the kind which can be allowed to be produced since they are in the nature of public documents. So far as documents at Sl.No. (v) above are concerned, even they can be allowed to be produced at this stage. No serious prejudice would be caused to the defendant by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rgument of the defendant is that the affidavit of Mr. Christian London ought to have been affirmed before a Diplomatic or Consular Officer in France in accordance withSection 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. He submits that the affidavit of Mr. Christian London appears to have been merely notarized by a French Notary. However, there is no certification by the Indian Consular or Diplomatic Officer of the fact that the so called notary was, in fact, authorized to notarize the affidavit of the witness. He relied on AIR 1967 Calcutta 636 in Re. K.K. Ray (Private) Ltd. In this case, the court was concerned with the two affidavits sworn before a Notary Public of New York, USA. The notarial act of the Notary had been certified by the Certify Country Clerk, a Clerk of the Supreme Court, New York County which is a court of record by affixation of its seal. Further, there was a certificate given by the Consulate General of India, New York for legalizing the seal of the Clerk of the County of New York. The court rejected the objections raised to the affidavits in question. In the course of its judgment, the court observed as follows :- (32) The No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears, is the addition of the certificate described in Article 4, issued by the competent authority of the state from which the document emanates. However, the formality mentioned in the preceding paragraph cannot be required when either the laws, regulations, or practice in force in the State where the document is produced or an agreement between two or more Contracting States have abolished or simplified it, or exempt the document itself from legalisation. Article 4 reads :- The certificate referred to in the first paragraph of Article 3 shall be placed on the document itself or on an allonge , it shall be in the form of the model annexed to the present Convention. It may, however, be drawn up in the official language of the authority which issues it. The standard terms appearing therein may be in a second language also. The title Apostille (Convention de La Haye du 5 octobre 1961) shall be in the French language. The submission of the defendant based on Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle says that the only formality that ''may'' be required in order to certify the authenticity of the signature, the capacity in which the person signing the document has acted and the identity of the seal or stamp which it bears, is the addition of the certificate described in Article 4. In India, there is no formality prescribed with regard to the certification of authenticity of signature of the Notary, the capacity in which the Notary signs the document, or the identity of the seal or stamp which he affixes on the document. By virtue of later part of Rule 3, such condition cannot be required for purpose of legalization of documents notarized in foreign countries. On the other hand, learned counsel for the plaintiff has relied upon AIR 1980 Allahabad 369, Abdul Jabbar others Vs. 2nd Additional District Judge, Orai others . In this case, the court after following the cited decisions, held that Section 85 of the Indian Evidence Act (which raises a presumption in respect of a Power of Attorney having been executed before an authenticated Notary Public) applies equally to the documents authenticated by Notaries Public of other countries. The court held - In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.12.2005 was a statement made on oath. In the light of the aforesaid discussion, in my view the objections raised by the defendant are liable to be rejected. On the other hand, the defendant has succeeded in delaying the progress of the trial and cross-examination of a foreign witness who has been available since 16-01-2007. His cross-examination could not take place on 16th and 17th January 2007 on account of the unjustified and wholly unacceptable conduct of the defendant. All the objections raised by the defendant were of the nature which could have been raised during the course of cross-examination of the witness and the cross-examination ought not to have been refused by the defendant. In my view, the defendant by its conduct, has disentitled itself to its right of cross-examining the witness. The defendant must be taken to have acted at its own peril. Due to the conduct of the defendant, this court has had to put aside the other urgent and pressing matters since a foreign witness is waiting to be cross-examined before he leaves India. I, therefore, allow as the last and the only opportunity to defendant to cross-examine the aforesaid plaintiff's witness today i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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