Delhi High Court allowed the submission of critical electronic evidence certificate "65B Certificate" after initial omission, emphasizing the court's focus on justice over procedural technicalities.

The High Court of Delhi permitted the petitioner to file a certificate under Section 65B of the Indian Evidence Act, 1872 (IEA) after the commencement of the plaintiff's cross-examination in the case of Ram Kishan v. M/s Emaar MGF Constructions Pvt Ltd. setting aside a Trial Court order.

The court emphasized the importance of deciding cases on merit, stating that "the matter should be tried on merits and technicalities should not come in the way of justice." The court acknowledged that although the certificate should ideally be filed alongside the electronic evidence, "the non-filing of the certificate under Section 65B IEA at the relevant stage is a curable defect which could be removed by allowing to place the said certificate subsequently on record." It further held that "filing of the certificate under Section 65B IEA is a matter of procedure and by not allowing the same to be taken on record amounts to taking a hyper technical view which is against the settled preposition of law."

Brief of the case: The petitioner, the proprietor of M/s Shiv Aluminum & Glass, supplied and installed glass façades for various sites at the Common Wealth Games Village as per work orders from the respondent starting in 2010. Payments were made until August 17, 2011, but a balance of Rs. 12,00,580/- remained unpaid despite repeated requests. In response, the petitioner sent a legal notice dated April 25, 2014, demanding payment of the outstanding amount.

After receiving no response to the legal notice, the petitioner filed a suit in the Trial Court seeking recovery of Rs. 17,87,858/- along with the interest from the respondent. The suit, currently at the stage of plaintiff's evidence with the petitioner being cross-examined as PW-1, had its issues framed on March 12, 2015. Subsequently, on September 13, 2017, the petitioner applied under Section 151 of the CPC to introduce a Section 65B certificate under the IEA in support of the Statement of Account, which is central to the ongoing proceedings.

The petitioner states that when initially filing the suit, they unintentionally omitted to include the Section 65B of Indian Evidence Act certificate supporting their computerized Statement of Account due to lack of awareness. They subsequently filed an application under Section 151 CPC in the Trial Court to introduce this certificate, which was rejected on July 26, 2018, citing the commencement of PW-1's cross-examination. The petitioner has now filed a petition under Article 227 of the Constitution of India, seeking the Court's oversight over the Trial Court's decision in Civil Suit No. 55511/2016 titled "Ram Kishan v. Emaar MGF."

Having perused the arguments of the counsels for the parties the court has implied that the court may permit documents to be entered into the record if they are crucial for ensuring justice and their exclusion would unfairly prejudice the concerned party.

The Court highlighted the position of law in Ram Rati v. Mange Ram, AIR 2001 SC 2143 wherein, the Apex Court has observed documents should be admitted if they are crucial for a fair resolution of the case, ensuring that the opposing party has a chance to challenge the evidence presented.

In Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors.: (2020) 7 SCC 1m the Supreme Court has held that Section 65-B of the Evidence Act does not specify the exact timing for submitting the certificate. It emphasized that the certificate should accompany electronic records when presented as evidence. If a defective certificate is provided or if the certificate is not furnished upon demand, the trial judge must summon the relevant person under Section 65-B(4) to provide the required certificate. This discretion must be exercised judiciously in civil cases, considering the demands of justice and the specific circumstances of each case.

The Bench has also relied on the verdict in Karnataka vs. T. Naseer alias Nasir alias Thandiantavida Naseer alias Umarhazi alias Hazi & Others: 2023 SCC OnLine SC 1447:

**“10. In State of Karnataka v. M.R. Hiremath, 2019(7) SCC 515, this Court after referring to the earlier judgment in Anwar‟a case (supra) held that the non-production of the Certificate under Section 65B of the Act is a curable defect. Relevant paragraph „16‟ thereof is extracted below:

“16. The same view has been reiterated by a two-Judge Bench of this Court in Union of India v. Ravindra V. Desai, (2018) 16 SCC 273. The Court emphasised that non-production of a certificate under Section 65-B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu v. State of Haryana, (2017) 8 SCC 570 in which it was held:**

**32. … The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.‟ (Emphasis added)

11. Coming to the issue as to the stage of production of the certificate under Section 65-B of the Act is concerned, this Court in Arjun Panditrao Khotkar‟s case (supra) held that the certificate under 65-B of the Act can be produced at any stage if the trial is not over.”

The Court has placed heavy reliance on these precedential cases and has ascertained in light of the well-established position of law, that a certificate under section 65B IEA should be filed by the petitioner along with the Statement of Accounts at the time of filing of the suit.

However, non-filing of the same is a curable defect at the relevant stage. It is evident that filing the Section 65B Indin Evidence Act certificate is a procedural matter, and refusing to allow its submission on record constitutes an overly strict interpretation contrary to established legal principles cited earlier. Therefore, the order dated July 26, 2018, is overturned.

Thus, allowing the Petitioner to place on record the certificate under Section 65B IEA with respect to the Statement of Accounts subject to a cost of Rs. 15,000/.

CORAM: HON’BLE MS. JUSTICE SHALINDER KAUR
BETWEEN: RAM KISHAN V. M/S EMAAR MGF CONSTRUCTIONS PVT LTD
CM(M) 197/2019 & CM APPL. 48567/2023
Judgment reserved on: 27.03.2024
Judgment pronounced on: 28.06.2024