1. The suit is listed in terms of order dated 26th October, 2016 of the learned Joint Registrar.

2. The counsel for the plaintiffs and the counsel for the defendant have been heard.

3. The plaintiffs instituted this suit, for injunction restraining infringement of trademark and passing off and for ancillary reliefs, as far back as in the year 2007 and issues were framed in the suit on 20th January, 2009. Though the plaintiffs earlier filed affidavits by way of examination-in-chief of two witnesses but none of the witnesses have been examined till now and the counsel for the plaintiffs states that the said witnesses are now no longer in the employment of the plaintiffs and are not to be examined.

4. The plaintiffs have now on 17th October, 2016 filed affidavit by way of examination-in-chief verified on 17th October, 2016 of Mr. Aditya Singhal constituted attorney of the plaintiffs and the suit was listed before the Joint Registrar on 26th October, 2016 for tendering of said affidavit into evidence. However the counsel for the defendant objected to certain documents having been filed for the first time with the said affidavit. The said documents included an affidavit, also verified on 17th October, 2016, of the same Mr. Aditya Singhal, under Sections 65-A and 65-B of the Evidence Act, 1872. The Joint Registrar, in the order dated 26th October, 2016, has recorded the submission of the defendant that the said affidavit under Sections 65-A and 65-B of Evidence Act cannot be filed at this stage and the same should have been filed alongwith the electronic record. Per contra, the counsel for the plaintiffs drew attention of the learned Joint Register to Order XI Rule 6 CPC as applicable to commercial suits and as the present suit is.

5. The learned Joint Registrar has posted the matter before this Bench today for adjudication of the said aspect.

6. The counsel for the plaintiffs states that the objection of the counsel for the defendant was confined only to the affidavit aforesaid under Sections 65-A & 65-B and not to any other document filed for the first time alongwith the affidavit by way of examination-in-chief.

7. The counsel for the defendant controverts.

8. It is the contention of the counsel for the plaintiffs that the need for filing an affidavit under Sections 65-A and 65-B of the Evidence Act arose only on coming into force of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Commercial Courts Act) w.e.f. 23rd October, 2015 and thus the question of filing the affidavit earlier did not arise. Attention is also invited to [Sub-Rules (1), (2), (5) and (6)] of Order XI Rule 6 of the CPC as applicable to commercial disputes and it is argued that the plaintiffs, at the appropriate time, have filed the computer printouts as well as CDs of the electronic record and the affidavit aforesaid under Sections 65-A and 65-B is in support thereof.

9. I have enquired, whether not even Section 65-B of the Evidence Act, which is in force since 17th October, 2000 i.e. since before the institution of this suit requires a litigant desirous of proving the information contained in an electronic record to file a certificate identifying the electronic record containing the statement and describing the manner in which it was produced and other particulars as described therein.

10. The counsel for the plaintiffs states that Section 65-B of the Evidence Act was concerned only with the proof of printouts of the computer record fed by the plaintiffs but Order XI Rule 6 has also made a provision for affidavit to be filed with respect to the proof of electronic record of a computer not fed by the plaintiffs and fed and maintained by third party. It is further stated that the plaintiffs herein, besides filing the printouts of its computerised record, have also filed printouts and CDs of computerized record fed and maintained by third party sites.

11. It is yet further stated that the affidavit aforesaid,