Tata Consumer Products Limited vs Ecgc Limited
2021 Latest Caselaw 10081 Bom

SMITA       Digitally signed by SMITA
            JOHNSON GONSALVES
JOHNSON     Date: 2021.09.02
GONSALVES   15:54:45 +0530




                       sg                                                            3. comss2030-96.doc

                                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                                      ORDINARY ORIGINAL CIVIL JURISDICTION

                                                COMMERCIAL SUMMARY SUIT NO.2030 OF 1996

                                                                  WITH

                                                  INTERIM APPLICATION (L) NO.16229 OF 2021

                                                                    IN

                                                COMMERCIAL SUMMARY SUIT NO.2030 OF 1996

                       Tata Consumer Products Limited                     ...Applicant/Plaintiff
                             vs.

                       ECGC Limited                                       ...Defendant

                                                                   .....

                       Mr. Karl Tamboly, a/w. Mr. Arun Siwach and Ms. Priyanka Mitra, i/b. Cyril
                       Amarchand Mangaldas, for the Plaintiff/Applicant.

                       Mr. Dinesh Purandare, a/w. Ms. Sanaya Dadachanji and Mr. Shaunak
                       Vadhavkar, i/b. Manilal Kher Ambalal & Co., for the Defendant.

                                                                   ....

                                                   CORAM : DAMA SESHADRI NAIDU, J.

DATED : 2 AUGUST 2021

P.C. :

The Applicant Company filed its suit in 1996. The defendant is a public sector undertaking. The trial at the earliest began in February 2021, just before the onset of Covid. The applicant's first witness came down from Kolkata, where he lives and works, and submitted the evidence-in-chief, besides having certain documents marked. Then the Court fixed the time for cross-examination. For that purpose, it appointed an advocate as the Court Commissioner. Thanks to Covid, the cross-examination did not take place;

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the Court went on extending time.

2. Eventually, through its order, dated 23 April 2021, the Court allowed the parties to explore the possibility of recording the cross- examination through VC hearings. Now, both parties report to the Court that though they did explore the possibility, there was no consensus. In other words, the defendant has reservations about recording the cross- examination through a video link.

3. Shri Tamboli, the learned counsel for the applicant, submits that the witness is the company's employee. Besides being a senior citizen, he is suffering from certain comorbidities that make his possible journey from Kolkata to Mumbai perilous. The learned counsel further points out that the respondent is a Public Sector Undertaking, having a pan-India presence. It is a government enterprise and has its office in Kolkata as well. Therefore, the Court may allow the cross-examination to take place virtually. For that purpose, the Court may, according to the learned counsel, issue directions and guidelines. It is open for the respondent's employees to be present at the place of cross-examination in Kolkata, Shri Tamboli adds.

4. Eventually, Shri Tamboli has drawn my attention to this Court's judgment in Liverpool And London Steamship Protection And Indemnity Association Ltd. vs. M. V. "Sea Success I" 1. According to him, that was the judgment rendered much before the pandemic--over a decade and a half ago. In that case, this Court has allowed the parties to record the cross- examination of a witness through virtual mode, as he had been staying in London. The learned Counsel has also drawn my attention to this Court's another judgment in ABL International vs. Export Credit Guarantee Corporation of India.2

1 2005 (3) Mah. L.J. 1050

2 (2004) 3 SCC 553

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5. Shri Tamboli submits that here the dispute is identical as was in ABL International. According to him, the dispute involves the same respondent in both cases and the same contract is required to be interpreted. In other words, the case essentially turns on questions of law with limited scope for any factual controversy. He, nevertheless, stresses that even through the virtual mode, the respondent may take all measures to ensure that the cross-examination is proper.

6. On the other hand, Shri Purandare, the learned counsel for the respondent, submits that the precipe discloses no reasons why the witness should be given the leverage of having his cross-examination through virtual mode. According to him, the pandemic has ceased and even the Courts have started functioning physically. Therefore, the applicant's insistence on virtual cross-examination carries no conviction. Then refuting the applicant's argument on the nature of this case, Shri Purandare submits that if at all that dispute does not admit of any oral evidence, the applicant could as well report to the Court no oral evidence on its part, thus cutting short the trial period.

7. According to Shri Purandare, the precipe specifies no particular reason to justify the virtual hearing. Indeed, he has fairly submitted that the respondent has its office in Kolkata, but that does not mean that the Court has to dispense with the witness's physical presence. In the end, Shri Purandare submits that the suit has been pending since 1996. If at all the applicant wants more time to produce its witness physically before the Court, it may take some more reasonable time and do so. Thus, the learned Counsel has strenuously objected to recording PW-1's cross-examination through virtual mode.

8. Indeed, in these difficult times, over the last two years, technology has come to our rescue. Even now, though this Court has opened physically,

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it has been working under severe restrictions; it has, in fact, adopted a hybrid method of functioning: part physical and part virtual.

9. On facts, the applicant stresses that the witness to be examined is a senior citizen having comorbidities. It has further pointed out that if the Court is to wait for the witness's physical presence, it may have to wait until the pandemic ceases. And that is uncertain. With that, a matter pending for over two decades will see more delay--an avoidable one at that.

10. I do appreciate the applicant's concern: it does not want its witness exposed to health hazards. So it insists on virtual hearing. But the respondent, a State entity though, wants the cross-examination taking place in a transparent setting. So it insists on physical hearing. Neither is unreasonable. That said, there ought to be a way out: a middle path, a path that minimises the risk but ensures fairness, too.

11. Professor Richard Susskind, in his Online Courts and the Future of Justice,3 underlines the importance, even the imminence, of the courts' embracing technology. According to him, there are two quite different uses of video technology in the courts. The first type is in fact a physical hearing into which some participants are linked by video. On this set-up, there is an actual courtroom with a judge and at least some parties and lawyers but, at the same time, some people participate remotely. In one way or another, this has been happening for several decades. Expert witnesses frequently give evidence by video from halfway across the world while vulnerable witnesses have been able to offer testimony without being intimidated by the people and the surroundings.

12. The second sort of virtual hearing, Susskind points out, is much rarer today. Here there is no physical event into which some people are connected by video. Instead, all participants are using video, including judges, lawyers, court clerks, witnesses, as well as parties to the dispute and 3 OUP Oxford, Kindle Edition, p.58

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sundry others. There are various enabling techniques used for these virtual hearings.4

13. Prof. Susskind acknowledges that technology has its limitations. But lawyers and judges who have used video technology and been unimpressed with the performance of the systems, according to him, should bear in mind that the enabling technologies are rapidly improving. Even the best systems (using immersive telepresence) are the worst they are ever going to be from now on. There is a danger here of technological myopia-- denying the future potential of these systems based on current technology. In a decade or so, we are likely, at the least, to be using augmented reality systems or perhaps even three-dimensional holographic services.

14. Prophetically, Prof. Susskind says that by 2030, and possibly much sooner, our courts around the world will have been transformed by technologies that have not yet been invented. "I cannot of course prove this, but given the scale of the financial investment and human effort being directed at court technology and at artificial intelligence (AI), this seems to me a far more likely outcome than the moderate change that most lawyers and judges might project. Today, we are surely at the beginning of an inevitable technological transformation in our court and judicial services". 5

15. Indeed, so long as we ensure procedural fairness, technology is a welcome adjunct to our adjudicatory armoury, rather than an obstructor or hindrance. Much less does it cause any prejudice.

16. The respondent does have its office in Kolkata, and there is no specific denial that the witness to be examined is a senior citizen having comorbidities. Undeniably, COVID has not disappeared; it is lurking in every corner. As to the health and safety of people, litigants included, the Court adopts a zero-error approach. It ought to. So, virtual hearing, now, is the

4 Ibid, p.59 5 Ibid, p.253

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only way out for a witness living far away.

17. Under these circumstances, I hold that PW1's cross-examination shall take place virtually. After my holding thus, the learned counsel for both parties have consulted their respective parties and filed "Agreed Directions/Protocol for the Cross-Examination of PW-1, Mr. Amitava Ranjan Sen' over Video Conferencing".

18. The copy of the agreed directions is marked as 'X' and made part of this disposition. Accordingly, I hold that, while recording PW-1's cross- examination, the learned Advocate Commissioner will observe the protocol as set out in the "agreed directions". And, needless to observe, the parties, too, must conduct themselves in tune with those "agreed terms". Should any dispute arise about the scope of those "agreed terms", the Advocate- Commissioner's word shall be final.

Post the matter in three months.

(DAMA SESHADRI NAIDU, J. )

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