Summary: Electronic records such as emails, chats, statements of account and ledger extracts are central to insolvency proceedings under the Insolvency and Bankruptcy Code, 2016. This article examines whether a certificate under Section 65B of the Indian Evidence Act, 1872, is mandatory for electronic evidence in proceedings before the National Company Law Tribunal (NCLT), and whether a missing certificate can be supplied later. It analyses the Supreme Court’s decisions in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, Union of India v. Ravindra V. Desai and Sonu v. State of Haryana, alongside relevant High Court and NCLT orders. It distinguishes procedural directions permitting late filing from binding rulings on admissibility and considers the reasoning in Pegasus Assets Reconstruction v. Dee Plone Polyster. The article also examines the transition to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, including its prescribed certificate format, hash-value requirement and expert certification. It concludes that creditors should ordinarily file the appropriate certificate with their petitions, while late filing may be permitted subject to the Tribunal’s directions and applicable law.
Introduction
Emails, chats, printed statements of account and ledger extracts sit at the centre of most insolvency petitions. A creditor uses them to prove default. A corporate debtor with little else to say often attacks them: there is no Section 65B certificate, so the evidence is inadmissible.
Two questions follow. Is the certificate mandatory at all in IBC proceedings? And if it is, can it be filed late? The article suggests the answer to the first is “mostly yes”, and to the second “usually, but not as of right”.
The real divide: original or copy
Section 65B of the Evidence Act, 1872 makes a printout or copy of an electronic record admissible only if a certificate under sub-section (4) accompanies it. In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, a three-judge bench held that the certificate is a condition for admissibility. It overruled Shafhi Mohammad, which had said the requirement could be relaxed in the interest of justice.
The Court also added a clarification that is easy to miss. The certificate is unnecessary if the original device itself is produced. For example, the owner of a phone or laptop can step into the witness box and prove that the device is his.
So the certificate is not mandatory in one forum and optional in another. It depends on what is being tendered. A printout, a PDF or a screenshot is secondary evidence and needs the certificate. The original device does not.
Most IBC petitions rely on copies. The argument that “65B does not apply in IBC” therefore works only in a narrow set of cases.
Does the IBC change this?
The natural counter is that the NCLT is a tribunal, not a civil court. Section 424 of the Companies Act, 2013, which also applies to IBC proceedings, says the Tribunal is not bound by the Code of Civil Procedure and is guided by natural justice.
But the section says nothing that frees the Tribunal from the Evidence Act. Sub-section (2)(d) even mentions the Evidence Act by name. Relaxed procedure is not the same as relaxed proof. On the text, I find it hard to argue that Section 65B simply does not reach the IBC.
Where the relief comes from: curability
The better argument is about timing. Section 65B does not say when the certificate must be produced. The Supreme Court treated late production as a curable defect in Union of India v. Ravindra V. Desai, (2018) 16 SCC 273. That case relied on Sonu v. State of Haryana, (2017) 8 SCC 570, which links an objection on mode of proof to the stage at which the document is marked.
Arjun Panditrao did not shut this door either. It noted that the Act is silent on timing and said that where a certificate is missing or defective, the trial judge can require it to be given. The Madras High Court agreed in Dr. M. Sudheer v. M. Kamaraj, 2022 SCC OnLine Mad 6809.
One caution. Ravindra Desai and Sonu were both decided before Arjun Panditrao. They should be read alongside it, not on their own.
NCLT benches have followed the same practical approach. In Golden Heritage Promoters v. ALM Infotech City and Krishiv Poly Products v. Salasar Impex (both 2022), the petition had been served by email but no Section 65B affidavit was filed. The Tribunal simply told counsel to file it within a week.
The IBC authorities are thinner than they look
Golden Heritage and Krishiv are short procedural orders. They show what tribunals do, not why. They do not decide whether the certificate is mandatory, and nobody should cite them as a ruling on the law.
Pegasus Assets Reconstruction v. Dee Plone Polyster (NCLT Mumbai, 2025) is the stronger and more quoted authority. LiveLaw’s report says the Tribunal treated both inadequate stamping and the missing certificate as curable and not a bar to a Section 7 petition.
First, the same report notes that a Section 65B certificate was in fact furnished for the electronic evidence. So the remark on 65B was not what decided the case.
Second, the words the Tribunal used on 65B are softer than “curable defect”. It said the absence of a certificate may affect evidentiary weight but does not invalidate the application where other corroborative evidence exists. The word “curable” appears in the paragraph dealing with a missing board resolution. Reports of the case apply the label to 65B as well, but the order’s own language on 65B is about weight.
That difference matters. “Weight, not validity” is a more practical idea, because it moves the question from admissibility to how far the Tribunal trusts the document. In a Section 7 petition where the debtor’s own accounts admit the debt, a missing certificate changes little. Where default is disputed, it could hurt a lot.
But the idea sits uneasily with Arjun Panditrao, which treats the certificate as a precondition to admissibility. A document that is inadmissible has no weight to be argued about. Until a higher forum settles this, the “weight, not validity” reasoning is a tribunal-level view, not settled law.
A new wrinkle: the Bharatiya Sakshya Adhiniyam
There is a bigger issue that older case law does not cover. The Bharatiya Sakshya Adhiniyam, 2023 replaced the Evidence Act on 1 July 2024, and Section 63 now does the work of Section 65B. The certificate must follow a prescribed format. It carries Part A, completed by the person in charge of the device and including the hash value of the record, and Part B, completed by an expert.
The Supreme Court has since upheld Section 63(4) in Pune Bar Association v. Union of India. It also explained who can sign Part B: a person with proven expertise in computer science and cyber forensics, if the court is satisfied about their credentials.
For anyone filing in the IBC today, this raises the cost of getting the certificate wrong. I did not find an IBC decision that applies the “curable defect” reasoning to a Section 63 certificate. Whether tribunals will be as relaxed about a missing hash value or a missing expert signature is an open question.
What this means in practice
For a creditor, the safe course is to file the certificate with the petition, in the correct format, for every printout or copy.
If it is missing, apply for leave before the debtor raises the point. Tribunals have usually allowed time, but that is a practice and not a right.
For a debtor, the objection is worth raising early. A late objection is weaker, because Sonu ties the objection to the stage of marking. On its own, though, a missing certificate is unlikely to defeat a Section 7 petition where other evidence shows default.
Conclusion
The starting premise was that the certificate is not mandatory in IBC proceedings. The research does not support that, except where an original device is produced. The fallback premise, that the certificate can be filed later, stands on firmer ground, but it rests mainly on older Supreme Court cases and short tribunal orders. With the BSA now in force, the real task is to track how tribunals treat the new, stricter certificate.
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Author: Sarthak Gupta | 3rd Year, B.A., LL.B. (Hons.), Institute of Law, Nirma University
