@15
Although
the issues to be considered depend on the specific facts and
circumstances of the case, the party intending to bring a claim
should broadly consider:
jurisdiction
of the court of law;
the
nature of relief; and
the
limitation period with respect to the claim.
@16
Establishing
jurisdiction :-
Jurisdiction
is established based on the value of the subject matter (ie,
pecuniary jurisdiction) and the location of the defendant or cause of
action (ie, territorial jurisdiction). If a suit can be filed at
multiple courts and the parties confer exclusive jurisdiction on one
of such courts, only the court having conferred jurisdiction as per
the agreement between the parties will have jurisdiction. If an
Indian party approaches courts in two separate jurisdictions, there
are specific provisions under the law that bar the Indian party from
initiating parallel proceedings on the same subject matter.
@17
In
the event that any order is passed by an Indian court against a
foreign party, the same would have to be enforced against the foreign
party in its local jurisdiction (based on the law of such
jurisdiction). If the foreign party has assets in India, money
decrees against such party may be executed by attachment and sale of
assets of the foreign party in India.
There
is no prohibition under the law preventing a party from approaching a
foreign court while the proceedings are pending in a court on the
same subject matter. Typically, a court would stay the proceedings
only if there is a likelihood of contradictory judgments on the same
subject matter.
@18
Preclusion:-
Res
judicata: is preclusion applicable :-
Courts
are barred from trying any suit or issue that has been finally
decided by a competent court in a former suit between the same
parties or between parties under whom they or any of them claim.
@19
Applicability
of foreign laws :-
Indian
courts would apply foreign law only if parties have agreed to be
governed by foreign law under a contract. The relevant foreign law
must be proved by the parties as a matter of fact.
Initial
steps :-
The
steps that a claimant can take to ensure that an eventual judgment is
satisfied revolve around preventing the defendant from fraudulently
disposing off or creating third-party rights over its assets (by
seeking interim relief to this effect).
@20
Freezing
assets :-
If
there is an apprehension that a defendant may dispose its assets and
frustrate the claim, the claimant can approach a competent court and
seek interim relief. Indian courts typically grant a freezing order
(known as temporary injunction) only if the claimant establishes:
a
prima facie case;
a
possibility of irreparable harm; and
the
balance of convenience.
@21
Pre-action
conduct requirements :-
Based
on the facts and circumstances of the case, there may be statutory
requirements that are required to be met prior to initiation of legal
proceedings. These statutory requirements include the sending of
notice to the defendants, paying of court fees, etc. Non-compliance
in relation to such statutory obligations could vitiate the legal
proceedings.
Further,
a claimant is required to ensure that all the relevant documents
pertaining to the claim are disclosed with the court filings. Indian
courts have the power to dismiss the claim on the ground that a
claimant has not approached the court with clean hands.
@22
Other
interim relief :-
Interim
relief can also be claimed, inter alia, in the following forms:
attachment
of property;
interim
sale;
detention
of property, which is the subject matter of a suit;
deposit
of the claim amount with the court;
appointment
of receivers for the property;
deposit
of security in the form of immovable property; or
a
bank guarantee equivalent to the claim amount.
@23
Alternative
dispute resolution :-
If
the agreement between the parties requires them to engage in
alternative dispute resolution (ADR) before initiating any legal
proceedings, Indian courts will direct the parties to engage in ADR.
If
it appears to a court during proceedings that elements of a
settlement exist between the parties, the court may refer the dispute
to, inter alia, mediation or judicial settlement, or adjourn the
proceedings.
@24
Claims
against natural persons versus corporations :-
An
individual who owns and runs a business concern has unlimited
liability in relation to his business. This implies that if a claim
against the business concern cannot be satisfied from its assets, the
claimant can attach the personal assets of such an individual for
claims against the business concern.
On
the other hand, the liability of a corporation is typically limited
by its share capital. Therefore, if a claim is made against a
corporation that it is not able to satisfy from its assets, the
claimant cannot attach the personal assets of the shareholders of the
corporation.
@25
Class
actions :-
Under
the Code of Civil Procedure 1908, a class action suit (known as
representative suit) can be filed if the persons filing the suit have
the same interest (ie, commonality of interest) and obtain permission
from the court. Such permission is only granted by the court after
service of notice to all interested parties.
A
public interest litigation may also be filed in the High Courts and
the Supreme Court against the state or public authorities by public
spirited individuals who represent a class of individuals for
violation of their rights.
@26
Third-party
funding :-
Third-party
funding is prohibited for litigations in India.
Launching
claims :-
In
a suit, claims can be made by filing a plaint before the civil
courts. Written pleadings primarily contain facts, issues, claims and
prayers. While the pleadings tend to be detailed, the length of the
pleadings vary with the complexity of each case. All the documents
relevant and necessary for establishing the contentions made are
required to be appended to the pleadings.
@27
Serving
claims on foreign parties :-
India
has executed mutual legal assistance treaties with certain countries
for service of summons, warrants and judicial process. If the
defendant resides in one of such countries, a request can be made to
the Ministry of Home Affairs for service of judicial documents. In
this scenario, the process would be governed according to the
provisions contained in the relevant mutual legal assistance treaty.
Key
causes of action :-
Some
of the key causes of action that may arise in commercial litigation
are default in payment and default in complying with other
contractual obligations.
@28
Claim
amendments :-
If
a party to the suit is able to convince the court that an amendment
to the claim is necessary for deciding the dispute, then such
amendment may be allowed by the court. However, no amendment in
pleadings is allowed after the trial has commenced if the court finds
that such amendment could have been made prior to commencement of the
trial by observing due diligence.
@29
Remedies
:-
Under
the Indian law, a claimant is entitled to remedies including, but not
limited to:
damages;
specific
performance;
recovery
of debt or investment;
injunction
(including both permanent injunction and mandatory injunction); and
enforcement
of security.
@30
Recoverable
damages :-
Damages
that are suffered from a foreseeable consequence of the action of
defendant are recoverable. Further, courts also award liquidated
damages if the parties have stipulated for such damages under their
agreement.
There
are no specific rules that make India a more favourable jurisdiction
than others in relation to damages.
@31
Responding
to the claim
Early
steps available:-
In
the initial stages of the suit, the defendant may challenge
jurisdiction or make a counterclaim at the stage of filing of
defence.
Jurisdiction
may be challenged on the grounds of subject matter, territoriality or
pecuniary limits of the court. A counterclaim may be made by the
defendant for any right or cause of action available to the defendant
against the claimant.
The
defendant can file an application contending that a third party is
liable for the claim and is, therefore, a necessary party for the
proceedings. In addition, if a defendant can prove that only the
third party so impleaded as a necessary party is liable for the
claim, it can apply to the court to strike off its name as a party to
the suit.
@32
Defence
structure :-
The
structure of defence depends on the kind of proceedings initiated by
the claimant. For instance, in a suit, typically, the defendant is
required to specifically deal with all claims made by the claimant by
giving a full rebuttal. The defendant is required to file the written
statement within 30 days from the service of summons (extendable to
90 days with the permission of the court). All relevant documents
required by the defendant to rebut the claimant’s case need to be
appended to the defence.
@33
Changing
defence :-
Courts
have a discretionary power to allow a defendant to amend its
pleadings if such amendment is necessary for determining the
underlying dispute. However, no such amendment is allowed after the
trial has commenced unless the court decides that the party could not
have raised the matter at an earlier stage despite observing due
diligence.
Sharing
liability :-
The
defendant can approach the court contending that a third party is a
necessary party to the proceedings where, without such a party being
impleaded, the matter cannot be decided. Unless a contrary intention
appears from the agreement, the defendant may compel every other
party that is a joint promisor to contribute equally in relation to
the performance of the obligations under the underlying agreement.
@34
Avoiding
trial :-
The
defendant can avoid trial through various methods, which include:
disputing
the jurisdiction of the court;
establishing
that the plaint does not disclose a cause of action; and
an
out-of-court settlement.
@35
Case
of no defence :-
When
a suit is instituted, summons is issued to the defendant to appear
and defend the claim. If the defendant fails to appear for the
proceedings even after being given reasonable time, the court may
pass an ex parte decree based on the pleadings submitted by the
claimant. Even if the suit is heard ex parte, the plaintiff is
required to establish that it is entitled to the relief claimed.
Claiming
security :-
A
defendant may claim security for all costs incurred or likely to be
incurred.
@36
Typical
procedural steps:-
The
sequence of procedural steps to be taken depends upon the kind of
proceedings initiated by the claimant. In a suit, once the
appropriate jurisdiction is identified, the claimant initiates
proceedings by filing pleadings in the relevant court. Post filing,
the respondent is given a copy of such pleadings. The respondent is
also given an opportunity to file a response to such claims.
Thereafter, both the parties produce and file documents on which they
rely, to substantiate their respective claims. Issues are finalised
by the court and, after hearing both parties, a judgment is passed by
the court. The court may also pass interim orders during the pendency
of the case to provide timely relief to the aggrieved party.
@37
Bringing
in additional parties:-
The
defendant can claim that a third party is a necessary party without
whom the matter cannot be decided, or the third party can file an
application seeking to implead the proceedings.
Consolidating
proceedings :-
Multiple
proceedings may be heard together if the court believes that the
proceedings arise from the same set of facts and relate to the
resolution of similar issues.
On
the other hand, the proceedings may be split if the court believes
that there are multiple sets of facts, that the claims based on such
facts are different and that the court would not be able to do
justice to such distinct sets of facts.
@38
Court
decision making :-
While
the claims or allegations in criminal proceedings are required to be
proven beyond reasonable doubt, the civil proceedings require
preponderance of evidence. Once the claims or allegations are
submitted, the court decides the case based on applicable law and
specific facts of the case.
The
orders, remedies and judgments given by courts are based on the
relief claimed by the claimant (subject to applicable law), legal
statutes (and amendments thereto) and judicial precedents applicable
to the specific facts of the case.
@39
Evidence
:-
The
Indian courts consider documentary and expert evidence, and
statements of witnesses, while deciding a case. In the context of
weight attached to evidence, expert evidence typically has more
value, followed by documentary evidence. Oral evidence is typically
subject to cross-examination and, to that extent, its value can be
diluted.
In
order to deal with large volumes of commercial and technical
evidence, Indian courts typically appoint a commissioner to create a
record of the evidence (often in the form of questions and answers).
In such a situation, the court only considers the record of evidence
submitted by the commissioner.
A
letter of request or commission may be issued to a person resident in
India if the foreign court is satisfied that the evidence of such
person is necessary. Further, countries that are signatories to the
Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, dated 18 March 1970, may also submit a letter of request to
the judicial authority in the prescribed format for obtaining
evidence in India. In this scenario, the judicial authority in India
would apply its own law on the methods and procedures to be followed.
However, it will follow a request of the requesting authority that a
special method or procedure be followed, unless this is incompatible
with either the internal law of the state, the impossibility of
performance owing to internal practices and procedures, or practical
difficulties.
Based
on the facts and circumstances of the case, a court in India may
direct a foreign witness to appear and testify in the court.
The
documentary evidence produced in a court is considered to be of
greater value than oral evidence. It is tested on various factors
including whether the document is forged and whether the intent of
the parties is accurately captured in the document.
Similarly,
witnesses are tested on the veracity of their statements, which are
analysed with the court taking into consideration the facts and
circumstances of the case.
Cross-examination
is allowed at the discretion of the court.
@40
Time
frame :-
The
duration depends on the kind of proceedings initiated by the
claimant, along with the prescribed statutory timelines for such
proceedings.
Typically,
suits in India take significant time before a judgment is pronounced
(primarily due to various stages, which include, inter alia, framing
of issues, submission of evidence, chief examination and
cross-examination). In addition, the archaic procedural laws and
frequent adjournments further contribute to the stretched timelines,
though there are conscious efforts being made to change this
situation.
However,
certain legislations have been recently introduced to expedite the
process of resolution. For instance, the Insolvency and Bankruptcy
Code 2016 (the Insolvency Code) has been introduced to complete the
insolvency process within 180 days (extendable to 270 days). The
Commercial Courts Act prescribes strict timelines for the conduct and
disposal of commercial disputes in India.
A
superior court may also direct a lower court to hear a case on an
expedited basis when there has been an inordinate delay in the case.
@41
Gaining
an advantage :-
Indian
courts have discretionary powers in relation to the grant of certain
equitable reliefs. For claiming such relief, it is necessary that the
claimant approaches the court with ‘clean hands’ (ie, acts in a
fair and equitable manner and does not attempt to mislead the court).
If it is proved before the court that the party claiming such
equitable relief has approached the court by suppression of material
facts, such as fraud, the court would not grant equitable relief to
such a claimant.
Further,
the court may strike out certain pleadings that are frivolous or
vexatious, may prejudice or delay the trial, or otherwise constitute
an abuse of the court process.
Impact
of third-party funding :-
Not
applicable - see question 15.
Parallel
proceedings:-
It
is not uncommon for parties to initiate and be able to maintain
simultaneous civil and criminal proceedings, which arise out of the
same set of facts, before Indian courts. There is a difference in the
burden of proof required to be discharged in both sets of proceedings
and any order issued in a civil matter cannot be used to one’s
advantage before the criminal court. Parties against whom
simultaneous proceedings are initiated frequently raise defences of
forum shopping and multiplicity of proceedings, however such
proceedings can proceed independently and are decided on their own
merits. In our experience, we have seen criminal complaints being
filed to exert pressure on the opposing party in order to initiate
negotiations with a view to arrive at an amicable settlement of civil
disputes.
Criminal
prosecutions can be initiated by private parties by instituting
private complaints directly before the magistrate, without
necessarily having to register a complaint before the police. Such
cases mostly pertain to complaints that do not require an
investigation and all relevant evidence (which is mostly documentary
in nature) can be produced by the complainant him or herself.
@42
Trial
conduct :-
The
manner in which a trial is conducted depends on the kind of
proceedings initiated by the claimant. For instance, adjudication of
a suit in a civil court involves, inter alia, framing of issues,
submission of evidence, chief examination, cross-examination and
pronouncement of judgment. The court may also pass interim orders if
immediate relief is to be provided to the claimant. The trial in
high-value commercial disputes is conducted in accordance with the
Commercial Courts Act.
The
duration of the trial depends upon the complexity of the matter and
the facts of the relevant case. The Commercial Courts Act expedites
the trial since timelines have been provided for the progress of each
stage, such as filing of written statement, inspection of documents
and filing of appeals.
@43
Confidentiality
:-
The
documents taken on record by the court are maintained by the registry
department of the court. These documents are not typically accessible
to the general public unless a specific application is made
requesting access and explaining reasons why such access is required.
Such an application is considered by the court and it grants access
to the documents at its discretion.
To
maintain confidentiality, a request to court can be made to keep
certain documents sealed and confidential. While, typically, court
hearings are held in public, the court may restrict public access to
certain proceedings, depending on the sensitivity of the matter.
@44
Media
interest :-
Any
publication that prejudices, interferes or appears to interfere with
the due course of any judicial proceeding and administration of
justice in any manner is considered a contempt of court. However,
innocent publication is a defence under the Contempt of Courts Act
1971.
Indian
courts have the power to prohibit publication of information relating
to any proceeding on the grounds of public policy, public order or
security of the state. Based on the sensitivity of the matter, courts
may impose restrictions on reporting of information relating to such
a case.
@45
Proving
claims :-
In
a commercial dispute, foreseeable damages may be provided for breach
of an agreement. Typically, while assessing the monetary claims,
court shall analyse and quantify losses suffered by one party and
illegal gains received by the other. In case of liquidated damages,
the compensation provided would be the same as stipulated under the
agreement.
Post-trial
Costs
:-
Courts
impose costs depending on the facts and circumstances of each case.
Though Indian courts generally award nominal costs, there has been a
recent trend to impose more substantial costs to curb vexatious and
frivolous litigations.
Judgments
rendered by the courts in commercial cases tend to be elaborate, and
generally include facts, issues, arguments advanced by advocates of
the parties, legal principles involved and reasons for the judgment.
Reportable judgments are available on the website of the court that
has given the judgment.
@46
Appeals
:-
All
matters adjudicated by courts and tribunals of first instance in
India are subject to appeal. The number of appeals varies based on
the court or tribunal of the first instance adjudicating the case.
Appeals
are generally on questions of law rather than a challenge to the
facts of the case, and are required to be filed within the prescribed
limitation period. The duration of the proceedings in an appeal
depends on the kind of appeal preferred by the aggrieved party. For
instance, under the Commercial Courts Act, the appellate division
endeavours to dispose of an appeal in a period of six months from
filing.
Enforceability
:-
The
government of India has notified certain territories as
‘reciprocating territories’ (for example, United Kingdom,
Singapore, Malaysia, Hong Kong) that India has reciprocal relations
with in relation to enforcement of judicial decrees. Courts in a
reciprocating territory enforce decrees passed by Indian courts, as
if they were pronounced by a competent court of the relevant
reciprocating territory.
However,
in other jurisdictions, enforceability of decrees passed by the
Indian courts internationally depends on the law of the foreign
country.
Under
Indian law, when a decree under which a sum of money is payable is
passed by a superior court (ie, a court notified as such in a
reciprocating territory), such a decree may be executed in India as
if it were passed by an Indian court.
For
countries that are not deemed reciprocating territories, a party has
to file a fresh civil action (suit) on that foreign decree or on the
original underlying cause of action, or both, in a domestic Indian
court of competent jurisdiction.
@47
Other
considerations
Interesting
features :-
The
courts in Mumbai and Delhi are adept in handling complex commercial
litigation. The recent introduction of the Commercial Courts Act
intends to facilitate the process of resolution of commercial
disputes. The Insolvency Code has also been introduced, which
provides for completion of the insolvency process within 180 days
(extendable to 270 days).
In
addition to the regular court process, special tribunals have been
constituted for adjudication of specific disputes. Some prominent
tribunals in relation to corporate and commercial litigation are as
follows:
the
National Company Law Tribunal, which has been instituted for
adjudication in relation to cases arising out of the Companies Act
2013 and the Insolvency Code;
the
Debts Recovery Tribunal, which deals with cases in relation to
recovery of debts by secured and unsecured creditors as per the
provisions of the Recovery of Debts due to Banks and Financial
Institutions Act 1993 and the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act 2002; and
the
Securities Appellate Tribunal, which deals with the appeals against
orders passed by the Securities and Exchange Board of India.
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