The Section 35 of the Evidence Act (EA) of Bhutan 2005 is an obstacle and impediment to justice in consumer disputes. This section determines the validity of a written agreement. It decides the fate of any dispute arising out of a written agreement. According to this section, every written agreement must be executed in presence of a witness from each party, signed by all the parties, and must bear a legal stamp.

The evidence plays a critical role in deciding any dispute because it is only “evidence that logically goes to prove or disprove the existence of those facts and would thereby get to the truth of the matter.” Section 14 of the EA defines admissible evidence as to any evidence that proves or disproves a fact in issue or “rationally renders the existence of a fact in issue probable or improbable.” But Section 35 overrides Section 14 because, if an agreement becomes invalid, the written agreement is inadmissible in the court.

Section 16 of the Contract Act 2013, which is a parent contract law, states that an agreement is valid as long as it is made by competent parties, with “free consent for a lawful consideration or object and is not declared to be void or illegal by any laws in force.” However, Section 19 states “irrespective of the value of its subject matter”, if there is a prescribed formality, it must be followed only if it fulfills the requirement, validating the enforceability of Section 35 of EA.

Most of the consumer contracts are based either on system generated receipts or a cash memo or mere handwritten receipts. As per Section 123 (e) of the Consumer Protection Act (CPA) 2012, a consumer contract means a “contract for the supply of goods, or services, for a price or consideration.” This means, if there is a price or consideration for the goods supplied or services rendered, the agreement becomes valid. However, consumer contracts fall short of fulfilling the requirements of Section 35 of EA if there is no witness or legal stamp. While a competent witness and legal stamps are important in many written agreements to “reinforce the validity and authenticity and add “another layer of security” exceptions are necessary.

These possess a huge impediment not only for consumer contracts but a whole range of other written agreements. This is because, unlike other laws which only pertains to their own subject matter, Section 35 of EA applies to every written agreement. It is must be understood that production of witness and legal stamp in every transaction in the consumer world is impossible. Further, the requirement of witness and the legal stamp is an economic burden and impedes an efficient business service, especially in the current situation.

The function of judges is to ascertain the existence or non-existence of fact by evidence and “apply the substantive law to the ascertained facts and to declare the rights, liabilities or remedies in any dispute.”  Section 35 contradicts this fundamental principle if a written agreement is invalidated merely because of the absence of a witness or a legal stamp.

Without the only and crucial evidence, there is no way the judges can render justice in any consumer disputes.  Since there is comprehensive contract law and other relevant statutes pertaining to written agreement, repealing Section 35 of the EA would be a good option.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.