Can a contract worth crores be formed by nothing more than a chain of emails, with no signed paper anywhere in the file? The Supreme Court answered yes in Trimex International FZE Ltd. v. Vedanta Aluminium Ltd., (2010) 3 SCC 1, holding that a series of email exchanges between the parties amounted to a concluded, binding contract for the supply of bauxite — enforceable even though neither side ever printed, signed, or stamped a single physical document. Section 85 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is the evidentiary rule that makes proving a case like that meaningfully easier once an electronic agreement carries the right kind of signature.
85. Presumption as to electronic agreements.
The Court shall presume that every electronic record purporting to be an agreement containing the electronic or digital signature of the parties was so concluded by affixing the electronic or digital signature of the parties.
Section 85 corresponds to Section 85A of the Indian Evidence Act, 1872, inserted by the Information Technology Act, 2000. The two versions are not quite identical, however. Section 85A, as it stood after the Information Technology (Amendment) Act, 2008 substituted "digital signature" with "electronic signature" throughout the Evidence Act, reads simply "electronic signature of the parties." Section 85 BSA instead reads "electronic or digital signature" — twice — deliberately restoring the word "digital" alongside "electronic." This is confirmed by comparing the text above (sourced independently from two bare-act aggregators) against the current IEA 85A wording, and cross-checked against the BSA-to-IEA correspondence table.
| Provision | Wording |
|---|---|
| Section 85A, Indian Evidence Act, 1872 (post-2008) | "...containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties." |
| Section 85, Bharatiya Sakshya Adhiniyam, 2023 | "...containing the electronic or digital signature of the parties was so concluded by affixing the electronic or digital signature of the parties." |
In practice this is unlikely to narrow or widen the section's reach in any real dispute — "digital signature" (the older, cryptographically specific term under the Information Technology Act, 2000) is generally treated as a subset of the broader "electronic signature" concept the 2008 amendment introduced. But it is a genuine, confirmed drafting difference and the fourth or fifth such single-phrase change this project has documented across the sections covered so far, part of a now well-established pattern of small, easy-to-miss BSA wording shifts sitting inside sections that otherwise look like verbatim carry-overs.
What the Presumption Actually Establishes
Section 85 does one specific thing: where an electronic record purports to be an agreement bearing the parties' electronic or digital signatures, the court shall presume — without qualification, unlike the "unless contrary is proved" language used elsewhere in this chapter — that the agreement was concluded by the affixing of those signatures. It answers the mechanical question of how the agreement came to exist in its signed form. It does not answer whether the underlying contract satisfies the ordinary requirements of a valid agreement under the Indian Contract Act, 1872 — offer, acceptance, consideration, and the parties' intention to create legal relations remain separate questions this section leaves entirely untouched.
Reading Section 85 Against What Trimex Actually Decided
It is worth being precise about what Trimex International did and did not need Section 85's predecessor for. The emails in that dispute were not digitally signed in the technical sense contemplated by this section — the Supreme Court's finding of a concluded contract rested on ordinary principles of offer and acceptance under the Contract Act, applied to an email exchange, not on any evidentiary presumption about signed electronic agreements. The case remains the leading authority for the broader proposition that Indian contract law does not require a formal, signed writing to form a binding agreement, electronic or otherwise. Section 85 covers the narrower, adjacent situation: where the electronic record does purport to carry the parties' electronic or digital signatures, the section spares the party relying on it from separately proving, witness by witness, that affixing those signatures is what brought the agreement into being.
A Practical Illustration
Two businesses finalise a supply contract through a commercial e-signing platform, each affixing an electronic signature to the same PDF agreement. If a dispute later arises and one party denies the agreement was validly concluded that way, Section 85 lets the other party rely on the presumption that the signed electronic record was indeed concluded by the affixing of those signatures, without needing a witness to walk the court through the platform's back-end signing logs from scratch. What the presumption does not resolve is a separate argument that, say, one signatory lacked authority to bind their company — that question sits outside Section 85 entirely and must be argued and proved on its own footing.
Key Takeaways
- Section 85 BSA corresponds to Section 85A IEA, but restores the word "digital" alongside "electronic" signature — a confirmed, if narrow, drafting difference from the post-2008 IEA wording.
- It creates an unqualified presumption (no "unless the contrary is proved" carve-out) that an electronic record purporting to be a signed agreement was concluded by the affixing of the parties' signatures.
- The presumption addresses only how the signed record came into being — not whether the underlying agreement satisfies the Indian Contract Act, 1872's own requirements for a valid contract.
- Section 10A of the Information Technology Act, 2000 works alongside this section at the substantive level, barring enforceability objections based purely on the electronic medium used.
- Trimex International FZE Ltd. v. Vedanta Aluminium Ltd., (2010) 3 SCC 1, remains the leading authority that Indian law does not require a signed writing at all for contract formation — a broader principle Section 85 complements rather than duplicates.
Conclusion
Section 85 removes one specific evidentiary friction point from electronic contracting — proving that a signed record was actually concluded by the signatures it bears — while leaving every substantive question about whether the parties actually formed a binding agreement to ordinary contract law, exactly where Trimex resolved it. It sits just below the higher, security-dependent presumptions of Section 86, covered earlier in this run, and above the notarised, paper-based world of powers-of-attorney addressed in Section 84, covered next.