Motian Devi Lamba vs Chet Ram Gupta And Others
2012 Latest Caselaw 2293 Del

*          HIGH COURT OF DELHI: NEW DELHI

%                                           Judgment pronounced on: 10.04.2012

+              I.A. No.13615/2011 in CS(OS) No.2147/2010


MOTIAN DEVI LAMBA                                              ..... Plaintiff
                 Through                     Mr. P. Chaudhury, Adv. with
                                             Mr. Keshav Chaudhury, Adv.

                       versus

CHET RAM GUPTA AND OTHERS                    ..... Defendants
                 Through  Mr. Ashok Gurnani, Adv. with
                          Mr. S.K. Chaturvedi, Adv. for D-1.
                          Ms. Nandni Sahni, Adv. with
                          Mr. Ujjawal Kumar, Adv. for D-2,
                          3 & 5.
                          SI Gyaneshwar Singh, EOW/Crime
                          Branch, in person, for D-6.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The present application has been filed on behalf of defendant Nos.2, 3 & 5 seeking direction for defendant No.6 (Additional Commissioner of police, Economic Offences Wing, Crime Branch, New Delhi) to conduct video conferencing as per orders dated 18.04.2011 and 19.05.2011 passed by this Court for examination of plaintiff, Smt. Motian Devi Lamba through video conferencing, in view of different stands taken by her from time to time in two pending cases.

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2. It is submitted that vide order dated 18.04.2011 the Court had directed the learned counsel for the defendant No.6 to conduct video conferencing to examine the plaintiff.

3. On 19.05.2011, the Court directed the Indian Embassy, U.K. to provide necessary assistance for examination of the plaintiff by video conferencing and recording through video conferencing for examination of the plaintiff within a period of six weeks. On 13.06.2011, defendant No.6 filed an application being I.A. No.10042/2011 before the Court seeking directions for payment of money for holding the video conferencing, however, till 18.07.2011 the process fee for the said application was not filed by defendant No.6 and on 18.07.2011, fresh notice was issued by the Court in the said application to the plaintiff through counsel. On 29.08.2011, I.A. No.10042/2011 was disposed of with the direction that the expenses which are likely to be incurred for video conferencing, shall be borne by the plaintiff, who has prayed that his witnesses be examined through video conferencing.

4. It is stated that defendant No.6 is unnecessarily delaying the compliance of orders passed by this Court and has, neither obtained the CFSL report nor made any progress in investigations which has resulted in further delay. SI Gyaneshwar Singh appearing on behalf of defendant No.6 denied the submission of defendants No.2, 3 & 5.

5. When the matter was listed before this Court on 15.11.2011, the Court directed Smt. Motian Devi Lamba to remain present in person on the next date of hearing. The relevant extract of the order dated 15.11.2011 reads as under:

I.A. No.13615/2011 in CS(OS) No.2147/2010 Page No.2 of 7 "On 29.08.2011, an application was filed by Delhi Police seeking a direction for making payment of all the expenditures, which were likely to be incurred for video recording the evidence of the plaintiff in terms of the orders dated 18.04.2011 and 19.05.2011. The matter was adjourned to 04.11.2011. On 04.11.2011, at the request of the parties, the matter was adjourned to 15.11.2011. On the said date, an application, being I.A. No.17887/2011, was filed by the plaintiff through her constituted attorney for modification of orders dated 18.04.2011 and 19.05.2011 seeking direction for personal appearance of Smt. Motian Devi Lamba before this Court to record her statement under Section 165 of the Evidence Act. It is pertinent to mention that when the matter is taken up, there are three different counsel representing Smt. Motian Devi Lamba. It has also been informed to the Court that she has issued power of attorneys to various persons and later on she has also started cancelling the Vakalatnamas already granted in favour of counsel appearing on her behalf. Not only that, she has also sent one letter dated 05.11.2011 from London to this Court revoking the general power of attorney in favour of her son Joginder Lamba and also in favour of Maninder Singh Shah. The counsel appearing on her behalf are also taking contrary stands on one day or the other. All the different counsels appearing on her behalf request that it would be appropriate that she may be called in person to record the statement under Section 165 of the Evidence Act before this Court in order to determine the real dispute between the parties.

In view of the conduct, as appearing from the record, the application filed by the constituted attorney on her behalf is allowed with the direction that Smt. Motian Devi Lamba shall remain present in person on the next of hearing and inform the Court who will be the counsel to represent both the matters on her behalf and also to give the statement as directed by the Court."

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6. Despite directions of the Court, Smt. Motian Devi Lamba was not present in Court on the next date i.e. 10.01.2012. Her counsel submitted her medical record along with the affidavit. Fresh vakalatnama has also been filed in favour of Mr. Premashis Choudhury when the matter was taken up today. The learned counsels for all the parties have agreed that they have no objection, in case the earlier orders passed in the matter are complied with and her statement be recorded through video conferencing. The learned counsels for the parties have relied upon the order passed in CS(OS) No.676/2007 titled as "Milano Impex Private Ltd. Vs. Egle Footwear Pvt. Ltd. and Ors." decided on 25.05.2011 by Shri J.R. Midha, J.

7. In the facts and circumstances of the case, and considering the age of, Smt. Motian Devi Lamba, and in view of consent of the parties, Smt. Motian Devi Lamba may be examined through video conferencing, the application is allowed. Accordingly, the following directions are issued in this regard:-

(i) Evidence of the plaintiff shall be recorded through video conferencing between Delhi (India) and London, U.K.

(ii) In Delhi, the video conferencing shall be conducted in the facilities available in the Annexe block of the Delhi High Court.

(iii) Mr. Girish Sharma, Registrar (Computers) of this Court is appointed as the coordinator with regard to the technical aspects of video conferencing in the Indian High Commission, London U.K.

(iv) The Indian High Commissioner at London U.K. shall nominate a senior officer, not below the rank of Deputy Secretary of India, to facilitate video conferencing. The officer nominated by the Indian High Commission

I.A. No.13615/2011 in CS(OS) No.2147/2010 Page No.4 of 7 shall co-ordinate the video conferencing arrangements in London U.K. and shall remain present at the time of recording of the evidence of the plaintiff.

(v) The officer nominated by the Indian High Commissioner in terms of the direction at serial no.(iv) above shall ensure that apart from his own presence, only counsel for the plaintiff is present at the time of video conferencing. He shall ensure that no manner of prompting by word or signs or by any other mode is permitted.

(vi) The officer nominated by the Indian High Commission shall verify the identity of the plaintiff before commencement of his examination.

(vii) As soon as identification part is complete, oath shall be administered by the respected Joint Registrar (J.R.) through the media as per the Oaths Act, 1969.

(viii) The plaintiff shall be examined during working hours of Indian Courts. The plea of any inconvenience on account of time difference between India and U.K. shall not be allowed. However, the convenience of the Indian Consulate in U.K. shall be taken into consideration in fixing the time and schedule.

(ix) The examination, as far as practicable, be proceeded without any interruption and without granting unnecessary adjournments. However, discretion of the Court (J.R.) shall be respected.

(x) The Court (J.R.) may record any material remarks regarding the demur of the plaintiff while on the screen and shall note the objections raised during recording of evidence.

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(xi) The deposition of the plaintiff shall be signed immediately in the presence of the nominated officer of the Indian High Commission. The said officer shall certify/attest the signatures of the plaintiff.

(xii) The audio and visual shall be recorded at both the ends and copies thereof shall be provided to the parties at the expense of the defendant No.6.

(xiii) The Indian Consulate in London shall provide an official translator to facilitate the translation of questions from English language to Gurmukhi language and answers from Gurmukhi language to English language for the recording of evidence of the plaintiff in English language.

(xiv) The plaintiff shall bear the cost/expenses of the video conferencing. The expenses for the video conferencing to be undertaken in London shall be informed to the defendant No.6 through counsel by the Indian High Commissioner. However, in case of any difficulty, the same may be communicated to the Registrar (Computers) of this Court by e-mail, who shall communicate the same to counsel for defendant No.6 in India.

(xv) The officer of the Indian High Commission to be nominated by the Indian High Commissioner shall be paid a lump sum amount of Rs.50,000/- as honorarium.

(xvi) The plaintiff shall deposit an amount of Rs. 10,000/- as cost of preparation of the certified copies with the Registry of this Court in the present case within two weeks from today. The Registry shall thereafter prepare certified copies of the entire record of the case, which shall be sent in separate folders clearly marked as order sheets; pleadings; applications; plaintiff's documents and defendant's documents. The same shall be

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(xvii) This record shall be made available to the officer nominated by the Indian High Commissioner for the purpose of undertaking the video conferencing as it would be necessary for recording the statement and cross examination of the witness.

(xviii) In case, the defendants are desirous of being physically present in London, U.K. at the time of recording of the evidence, it shall be open for them to make arrangements on their own cost for appearance and their representation. The defendants shall ensure that prior intimation in this regard is filed in the Registry of this Court giving full particulars of the names of the persons as well as enclosing documents of authority in respect of the persons, who shall be representing them in the proceedings. The intimation in this regard as well as documents shall also be furnished to Indian High Commission in London.

8. List for fixing the date for recording of the evidence of the plaintiff through video conferencing and for completing the formalities required for recording of the evidence before the learned Joint Registrar on 07.05.2012.

9. Copies of this order be sent to Mr. Girish Sharma, Registrar (Computers) of this Court as well as to the learned counsels for the parties. Dasti.

MANMOHAN SINGH, J.

APRIL 10, 2012

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