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2023 DIGILAW 2415 (DEL)

Ajay Jain v. Madhu Jain

2023-04-25

TUSHAR RAO GEDELA

body2023
JUDGMENT Tushar Rao Gedela, J. (Oral) [The proceeding has been conducted through Hybrid mode] CM APPL. 20304/2023 1. Exemption allowed subject to all just exceptions. 2. The application stands disposed of. CM(M) 655/2023 & CM APPL. 20305/2023 (Stay) 3. The petitioner challenges the order dated 21.02.2023 passed in CS DJ No. 462/2021 titled as " Madhu Jain Vs. M/s Paragon Paper Industries ", whereby the learned Trial Court has dismissed the application under Section 30 of the Code of Civil Procedure, 1908 r/w Section 165 of Indian Evidence Act, 1872, filed on behalf of the petitioner/defendants. 4. Mr. Mridul Jain, learned counsel appearing for the petitioners/defendants submits that the stand taken by the petitioners/defendants in their written statement involves the active role of the husband of the respondent/plaintiff insofar as the transactions whereon the disputes, in the suit concerned, have been raised. 5. Learned counsel submits that the filing of the said application was necessitated for the reason that the e-mail ID, as provided by the petitioners, was the one through which the husband of the respondent/plaintiff is alleged to have conducted transactions and submits that this is relevant since the very existence of the petitioner no. 3 and the transactions involved between the parties have been denied by the respondent/plaintiff. Learned counsel submits that these e-mails would be relevant for such purpose. 6. Learned counsel submits that in case the e-mails are not directed to be produced before the learned Trial Court, the evidence over a period of time during the trial, may be lost and seriously causing prejudice to the defence of the petitioners/defendants. 7. Per Contra , Dr. Amar Nath Gupta, learned counsel for the respondent/plaintiff, appearing on advance notice, refutes the submissions made by the petitioners/defendants and submits that the role of the husband is not at all described anywhere in the plaint and has been introduced purposely by the respondent to subvert the claims made by the respondent/plaintiff. 8. Mr. Gupta, learned counsel submits that, in any case, the e-mails pertain between the husband and the petitioner no.3, and is not relevant to decided the dispute raised in the suit. 9. Learned counsel also submits that the suit is simply and purely based on the loan given by respondent to the extent of Rs.15 Lakhs to Paragon paper Industries, which is a partnership firm comprising of petitioner nos.1 and 2. 9. Learned counsel also submits that the suit is simply and purely based on the loan given by respondent to the extent of Rs.15 Lakhs to Paragon paper Industries, which is a partnership firm comprising of petitioner nos.1 and 2. Learned counsel further submits that in the above circumstances, the husband is a third party and a stranger and has no role to play in the present suit or has any relevance to the issues raised therein. 10. Learned counsel also submits that the e-mails are surplusage and not at all required for any issue or any dispute between the parties. Learned counsel submits that it is only a set up to delay the proceedings as also to protract the trial and subvert the main issue. 11. Learned Counsel also submits that the amount extended as a loan by the respondent/plaintiff is a lifelong saving of the senior citizen and the deprivation at such stage is unfair. 12. Learned counsel submits that the impugned order is fair and sustainable in law, calling for no interference by this court. 13. This court has considered the submissions of the learned counsel for the parties as also perused the impugned order. 14. This court is not considering the merits of the matter inasmuch as the Court is circumscribed under the provision of Article 227 of the Constitution of India to consider only the procedural irregularity or judicial impropriety committed by the learned Trial Court if at all. 15. However, the fact that the documents/e-mails, which are electronic records, being maintained by the Service Provider, possibly may not be available after a certain point of time, particularly during the period of trial. Without even considering whether the documents would be relevant for the purpose of deciding any dispute, it appears that since the petitioners/defendants have raised a particular defence in their written statement as also enclosed 247 e-mails, accordingly to which, the defence of the defendants gets support. 16. This is not the stage for directing the production of these documents, inasmuch as, no issues have yet been framed and thus it is yet to be seen whether these documents, will be considered by the learned Trial Court, to be relevant to the issues so framed or not, is speculative. No orders on speculation can be passed by Courts of law. 17. No orders on speculation can be passed by Courts of law. 17. However, keeping in view, of the fact that there could be a possibility that these e-mail may be obliterated by the Service Provider after a particular point of time, this Court deems it fit and appropriate in the facts and circumstances of the case as also in the interest of justice, to direct the Service Provider merely Microsoft Corporation (India) Pvt. Ltd, to preserve the 247 e-mails pertaining to the e-mail address i.e. papier_scj@hotmail.com which were filed by the petitioners/defendants before the learned Trial Court. 18. It is submitted by learned counsel for the petitioners that a detailed list of e-mails giving the particulars, under a proper index, alongwith the said e-mails giving the particulars, under a proper index, alongwith the said e-mails was filed before the learned Trial Court. The said list may be filed before this Court within three day from today, whereupon the present order be sent to the Service Provider for the purposes of preserving the aforesaid e-mails, in case such e-mails are still available with it. 19. The Service Provider is directed to maintain and preserve the aforesaid e-mails till such time the learned Trial Court, in case, directs such production. 20. As and when there is a requirement for production of these documents, the petitioners/defendants would take appropriate steps in that regard. 21. It is made clear that the impugned order is modified only to the above extent, however, preserving the findings insofar as Section 165 of Indian Evidence Act, 1872 is concerned. 22. The cost as imposed vide the impugned order is retained and shall be paid within two weeks from today. 23. The petition is disposed of in above terms, with no order as to costs. 24. A copy of this order be also sent to the learned Trial Court, which may pass appropriate orders to ensure compliance.