Mitre Sports International Limited v. Home Box Office ,Inc

S. RAVINDRA BHAT, J. SEPTEMBER 08, 2009 mb Page 6

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on : 08.09.2009 + Mitre Sports International Limited ..... Petitioner Through : Mr. Gopal Jain with Ms. Namita Chadha and Ms. Svita Sarna, Advocates for the petitioner. Versus Home Box Office, Inc. ….. Respondent Through : Mr. Rajeev Nayyar, Sr. Advocate with Ms. Jasleen K. Oberoi, Advocate, for the respondent. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? HON'BLE MR. JUSTICE S.RAVINDRA BHAT, J. (Open Court) Cav. No.83/2009 * Learned counsel for the caveator has entered appearance. The caveat stands discharged. OMP No.516/2009 1. Heard learned counsel for the petitioner and the respondent, finally, with their consent.. 2. The present proceeding seek the appointment of a Commissioner under the provisions of Order 26 Rules 19 and 20 of CPC to collect the evidence of three witnesses; two of them are named in the petition and name of the third witness is kept confidential. It is stated that the condition of confidentiality was imposed pursuant to an agreement arrived at by the parties to the US District Court, Southern District of New York (hereinafter called the "Requesting Court"). A copy of the Page 2 letter of request dated 10.08.2009 has been filed along with the oral transcript of proceedings dated 02.06.2009. 3. The respondent; (apparently the defendant in the proceedings before the US District Court), objects to the request for issuance of the Commission; it submits that the petitioner is taking its chances before different authorities without appropriate disclosure. It is contended that the letter of request which is a subject matter of the present proceeding is also the subject matter of proceedings before the Registrar General, Delhi High Court, Registrar General, Allahabad High Court and the Registrar, Punjab and Haryana High Court. It is further submitted that the petitioner has not disclosed that earlier, another letter of request dated 27.04.2009 was issued by the US District Court. 4. The respondents further contend that the Court should desist from issuing a commission since the Requesting Court has referred to the "Hague Convention of 18th March 1970 on the Taking Evidence Abroad in Civil or Commercial Matters". 5. Counsel on behalf of the respondents contend that though India is a signatory to the convention, it has significantly derogated from some provisions more specifically to the request for pre-trial evidence that could be gathered from the Indian Courts. It is submitted that in view of such reservation, this Court should not grant the request of the petitioner and appoint a Commissioner. 6. The petitioner, in reply to the objections, relies upon an affidavit dated 05.09.2009 stating that the letter of request pending consideration by the Registrar of various High Courts including this High Court was pursuant to the Requesting Court indicating the same authorities. It is submitted that in any event the petitioner has requested the Registrar by a letter dated 31.08.2009 not to proceed or execute the letter, so far as it pertains to Delhi. 7. As far as the other objections of the respondents are resisted, the petitioner relies upon a ruling of this Court in Upaid Systems Limited Vs. Satyam Computer Services and Anr. (decided on Page 3 17.07.2009 in OMP 127/2009). It is lastly urged that the earlier letter of request issued on 27.04.2009 and was valid only upto 01.06.2009 which necessitated an application for a fresh letter of request that was ultimately granted on 10.08.2009. Counsel points to the agreement of the parties recorded in the transcript of proceedings of the US District Court - a copy of which has been placed on record. 8. From the above discussions, the Court discerns the two main objections of the respondent. As far as the objection regarding maintainabili