Section 65B Certificate Under the Indian Evidence Act, 1872 in IBC Proceedings: Mandatory Requirement or Curable Defect?
Introduction
In the contemporary landscape of insolvency litigation, electronic records occupy a position of undeniable significance. Emails, WhatsApp messages, account statements, and ledger extracts form the evidentiary backbone of most petitions filed under the Insolvency and Bankruptcy Code, 2016. A creditor invariably relies on such records to demonstrate default, while a corporate debtor frequently mounts a technical challenge arguing that without a certificate under Section 65B of the Indian Evidence Act, 1872, such evidence is simply inadmissible.
This raises two foundational questions that practitioners and tribunals continue to grapple with:
- Is a
Section 65Bcertificate actually mandatory in proceedings before the National Company Law Tribunal (NCLT) under the Insolvency and Bankruptcy Code, 2016? - If such a certificate is required but absent, can it be filed at a later stage?
The short answer to the first question is: largely yes, with a narrow but important exception. The answer to the second is: generally possible, but not as a matter of right.
Understanding the Core Distinction: Original vs. Copy
The architecture of Section 65B of the Indian Evidence Act, 1872 is built around one fundamental idea — a printout, screenshot, or digital copy of an electronic record is secondary evidence and is admissible only when accompanied by a certificate under sub-section (4) of that provision.
The Supreme Court authoritatively settled this position in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, where a three-judge bench unequivocally held that the Section 65B(4) certificate is a condition precedent to admissibility, not merely a procedural formality. In doing so, the Court expressly overruled Shafhi Mohammad, which had previously permitted relaxation of the requirement in the interest of justice.
However, the judgment contains a qualification that often escapes attention:
The certificate requirement does not apply where the original electronic device itself is produced before the Tribunal.
This means that if the owner of a mobile phone or laptop personally produces the device and testifies about it, no Section 65B certificate is necessary. The distinction is not between forums — it is between what is being tendered as evidence. A printout, a PDF export, a screenshot, or any other derived copy constitutes secondary evidence and requires the certificate. The original device does not.
Since the overwhelming majority of IBC petitions rely on printed or digital copies of electronic records rather than original devices, the argument that Section 65B has no application in IBC proceedings holds only in a narrow and uncommon set of circumstances.
Does the IBC Carve Out an Exception to the Evidence Act?
A commonly advanced argument is that the NCLT, being a tribunal and not a civil court, is not strictly bound by the rules of evidence. Section 424 of the Companies Act, 2013 — which applies to IBC proceedings as well — provides that the Tribunal is not bound by the Code of Civil Procedure, 1908, and is instead guided by principles of natural justice.
However, this provision does not, either expressly or by necessary implication, exempt the NCLT from the requirements of the Indian Evidence Act, 1872. In fact, Section 424(2)(d) of the Companies Act, 2013 specifically mentions the Evidence Act by name, reinforcing rather than diluting its applicability.
The distinction between relaxed procedure and relaxed proof standards is critical here. A tribunal may adopt a flexible approach to procedural technicalities, but that does not translate into the freedom to admit electronic evidence without satisfying the conditions that govern its admissibility. On a textual reading of the relevant provisions, it is difficult to sustain the position that Section 65B simply does not operate within the IBC framework.