Whether approved for reporting?¹Yes.

Sushil Kukreja, Judge

This order shall dispose of an application filed by the applicant/plaintiff under Section 60, 62 and 63(4) of Bharatiya Sakshya Adhiniyam, 2023 (for short “BSA”) for secondary evidence relating to documents in original in possession of the defendants. As per the applicant, he has

filed a Civil Suit for recovery of amount against the defendants. Before filing the suit, the defendants did make part payments on different dates to the plaintiff with respect to construction and repair work carried in the Hotel premises owned by the defendants. The plaintiff submitted sixteen invoices in original to the defendants, out of which, photo copies of ten invoices were filed with the plaint. After going through the said invoices, the defendants made part payments to the plaintiff on different dates and year. The plaintiff realizing the restriction/constraint in proving photocopies of ten invoices in the Court, the plaintiff issued notice dated 04.10.2024 under Order 12, Rule 8 CPC to the defendants through registered post to produce ten invoices in original and E-mail which was duly served upon the defendants. However, the defendants, despite having been duly served with the notice, did not produce those original invoices and original E-mail. The defendants knowing fully well that documents are in their possession in original, i.e. ten invoices and E-mail (Annexure P-6) consciously did not produce all such documents before the Court, hence, an

application, i.e. OMP No. 983 of 2024, under Order 11, Rule 14 CPC came to be filed in this Court, which was allowed vide order dated 27.03.2025 with a direction to defendant No. 2 and Hem Raj to be present in the Court on the next date i.e. on 08.05.2025. The statement of respondent No. 2 was recorded on 27.06.2025 and next date in the case was fixed for 05.08.2025 for examination of Hem Raj. The applicant has given his best efforts by issuing notice to the defendants, however, despite that they failed to produce documents mentioned in the notice. It is therefore prayed that the documents/proforma invoices No. 1 to 4 and invoices No. 6 to 10 may be ordered to be proved by secondary evidence being part of Annexure P-1 filed with the plaint and original electronic document of Annexure P-6 and original of E-mail message dated 01.10.2019 generated by Kapil Thakur, Assistant Manager Finance/HR, Larisa Resort, Shimla regarding Nirmal Malakar invoice sent to accounts Larisa, purchase Larisa and Priya Larisa through their respective E-mails may be ordered to be placed on record for secondary evidence contained in the computer or

requisite certificate under Section 63 (4) of the Act may be ordered to be issued by the competent authority by stepping into the witness box.

2. Reply to the application has been filed, wherein, it has been averred that the present application is wholly misconceived and not maintainable and has been filed merely to fill up material lacunae in the case. The plaintiff has suppressed material facts and has deliberately withheld the originals of the alleged invoices, being his own documents. It has been further averred that the applicant seeks to misuse the provisions of BSA, whereas the settled position of law is that the party relying upon electronic evidence must itself comply with the mandatory requirement of certificate under Section 65-B(4) of the Act. It has also been further averred that issues are yet to be framed and the suit has not been fixed for evidence. Hence, prayer for dismissal of the application has been made.

3. I have heard learned Senior Counsel for the applicants/plaintiff, learned counsel for the non-applicants/defendants and also gone through the material available on record.

4. The Indian Evidence Act, 1872 which is now replaced by Bhartiya Sakshya Adhiniyam,2023 (hereinafter referred to as BSA) recognizes electronically stored information as secondary evidence. Section 65 (B) of the Indian Evidence Ac