The main legal point established in the judgment is that the court has the power to issue letters of request under the provisions of the CPC, and the absence of a special law to give effect to a convention does not preclude the court from issuing letters of request.

HON’BLE MR. JUSTICE S.RAVINDRA BHAT, J.

1. The petitioner, (hereafter “Upaid”) claims reliefs under Section 78 read with Order XXVI Rule 19 and 20 of the Code of Civil Procedure, 1908 (CPC) for appointment of a local commissioner, further to a Letter of Request/ Letters Rogatory from the United States District Court for the Eastern District of Texas Marshall Division (hereafter “the foreign court”), for recording deposition of witnesses, to written questions, which have been appended to the letter of request, and request for production of certain documents by National Association of Software and Services Company (“NASSCOM”).

2. Upaid is a British Virgin Islands Corporation. It has filed a civil proceeding before the foreign court, for declaratory judgment alleging fraud, negligent misrepresentation, forgery and breach of contract, by the respondents (hereafter “Satyam”). NASSCOM’s testimony is important to Upaid, as it claims that Satyam’s (first respondent) membership with NASSCOM, as well as industry customs, practices and standards that would have applied to the services that Satyam, performed on its (Upaid’s) in connection with the intellectual property are in issue in the litigation pending before the foreign court. Upaid had earlier inadvertently assumed that NASSCOM was subject to Andhra Pradesh High Court jurisdiction and therefore sought the original letter of request to that Court. It is stated that various Letters Rogatory for other persons have already been filed and commissions issued by the said Court. Subsequently Upaid moved afresh for issuance of the Letters Rogatory to this Court, which was granted by the foreign Court.

3. Upaid relies on the text of Order 26, Rules 19 to 22 and contends that the requirements of law are fulfilled, since the proceeding pending before the requesting court is concededly civil; that the witnesses whose depositions are sought, live within jurisdiction of this court, and that their testimony can be conveniently recorded through a commissioner appointed in that regard.

4. Upaid’s counsel submits that the object of issuing letters of request by foreign courts is to facilitate recording of evidence, in foreign locales, where witnesses or evidence may be located, and which would otherwise not be possible for the litigants to secure. It is submitted that the import of Order 26 Rule is wide, to comprehend securing oral and documentary evidence. Upaid also argues that the court, at the stage of considering applications, does not concern itself with the relevance or otherwise of the materials sought to be secured on commission, as that is within the domain of the tribunal, which is seized of the dispute, between the parties.

5. Satyam objects to the request firstly, disputing the jurisdiction of this Court to entertain the petition and secondly, stating that the letter of request was issued pursuant to the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters 1970, (hereafter “the Convention”) to which India is a signatory, yet no law has been enacted by Parliament to give effect to this treaty under Article 253 of the Constitution of India; the Court cannot, consequently, take cognizance and execute the letter of request issued by the foreign court. Satyam places reliance on State of West Bengal v. Kesoram Industries (2004) 10 SCC 201 and Maganbhai v. Union of India AIR 1969 SC 783 and contends that the Supreme Court has ruled that an international treaty cannot be enforced in Indian courts, unless Parliament makes a law giving effect to the treaty. The relevant extracts of the said two judgments are reproduced below:

In Kesoram (supra) it was observed that:

“491. A treaty entered into by India cannot become law of the land and it cannot be implemented unless Parliament passes a law as required under Article 253.

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494. The learned Chief Justice also relied on the observation made by Lord Denning in Corocraft v. Ram American Airways (1969) All ER 82), that