65B - FAQ

As a business seeking to enforce electronic agreements in Court, what do I need to know about how electronic agreements are proved?

There are two steps  to proving an electronic agreement

(1) you have to furnish a valid  certificate under Section 65-B of the Evidence Act

(2) you have to prove that  the parties have signed/ accepted the agreement. The Supreme Court in the  landmark judgment of Anwar v. Basheer identified the following 5 conditions  that an electronic record must meet under Section 65-B, before it can be  admitted in evidence:

(a) It must be accompanied by a certificate which  identifies the electronic record containing the statement;

(b) The  certificate must describe the manner in which the electronic record was  produced;

(c) The certificate must furnish the particulars of the device  involved in the production of that record;

(d) The certificate must  demonstrate that the information or electronic record tendered in evidence  was produced by a computer/ device,

(i) which was used regularly to store or  process such information in the ordinary course and

(ii) was, at the relevant  time, operating properly.

(e) The certificate must be signed by a person  occupying a responsible official position in relation to the operation of the  device, who must state that all the above conditions have been met, to the  best of her knowledge or belief.

At what stage do I have to file the Section 65-B certificate in Court?

You have to file  the certificate at the stage of evidence. Depending on the Court your case is before, this stage of "evidence" begins when the Court asks  parties to file their compilation of documents (for the purpose of marking of  documents) or when the Court directs parties to file their Affidavits of  Evidence along with their compilation of documents.

How do I prove my Aadhaar eSigned/ DSC Signed Leegality Agreement in Court?

Should you opt for  an Aadhar e-sign/DSC Sign/Doc Signer, the process of proving an agreement  becomes very simple, and enjoys several presumptions:

(a) First, that the  electronic agreement containing the Aadhar e-sign/DSC Sign/Doc Signer was so  concluded by affixing the electronic signature of the parties. (Section 85A  of the Evidence Act)

(b) That the Aadhar e-sign/DSC Sign/Doc Signer was  affixed by parties with the intention of signing or approving the electronic  record. (Section 85B of the Evidence Act)

(c) That the agreement has not been  altered or tampered with after it was signed. (Section 85B of the Evidence  Act)

What are the implications of Arjun Panditrao for my Leegality agreements?

The key takeaway  for electronic agreements is that you must ensure that when you tender your  agreement and Audit Trail in evidence, you file a suitable certificate under  Section 65B, setting out the 5 Conditions identified by Anwar v. Basheer. An indicative  draft of a Section 65B certificate is available here.

What does the latest judgment, Arjun Panditrao, say on Section 65B of the Evidence Act?

In Arjun Panditrao,  the Supreme Court held that a certificate under Section 65B is mandatory for production of any electronic record in a secondary form. The only scenario in  which a Section 65B requirement can be waived is in the event that a party  has made all efforts (including judicial) to procure a 65B certificate but then finds it impossible to produce one.

What if I have opted for another mode of Virtual Sign instead? How would I prove it before Court?

Your Leegality  Virtual Sign agreements are digitally signed by Leegality, and thus enjoy a  presumption that they have not been altered or tampered with after signing (Section 85B of the Evidence Act). However, you will have to lead additional  evidence to show that the parties have accepted the agreement. Ordinarily,  you should be able to do this by producing the Audit Trail in Court along  with a suitable certificate under Section 65-B of the Evidence Act. Your  Leegality Audit Trail is also digitally signed by Leegality, and thus, it  enjoys a presumption that it has not been tampered with. Further Leegality  offers several additional layers of authentication, such as Face Capture  (with Liveliness Check) and Geolocation Capture. Adding these layers of authentication  can reduce the deniability of the signature and make it easier for you to  prove the same in Court. It is also advisable to also lead oral evidence in  addition to the Audit Trail to prove the execution of the agreement. For instance, you may step into the box to prove that (i) you sent an email  attaching the executed agreement to the other party, who either accepted it/  did not deny it or that (ii) the conduct of the other party clearly  demonstrates that he has acted pursuant to the agreement.

Will Leegality provide me with a Section 65-B Certificate?

There is no need to  obtain a Section 65B Certificate from Leegality. You can provide the  relevant 65B certificate yourself. Your Leegality agreement is always accessible to you either through (i) your own Platform or (ii) your account  with your document execution platform or (iii) in your email inbox. Thus, you  are best placed to furnish a Section 65B certificate. Leegality Comment:  However, should you at any point, encounter any difficulties in proving your  Leegality agreement, we are here to help.

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