chunk_id
int64 1
1.47k
| text
stringlengths 200
2.93k
|
|---|---|
101 | Evidence: Oral testimony and witness evidence in chief is filed by way of an aÆdavit of evidence in chief, with a right of cross-examination by the counter-party.Hearing: The plaintiff, ordinarily, has the right to begin, and the other parties reply in turn. The party beginning has the right to reply generally on the whole case after all parties have stated their case.Civil Proceedings under the Commercial Courts ActAll cases filed in relation to ‘Commercialfrom INR 10 million so as to bring moreDisputes’3of a ‘Specified Value’4arecommercial disputes within the Courts’required to be filed before the relevant Commercial Court / Commercial Division h a v i n g t h e r e l e v a n t t e r r i t o r i a l jurisdiction. The ‘Specified Value’ may differ from State to State, being prescribed by the relevant State Government in consultation with the concerned High Court, but will be above INR 0.3 million. This figure was decreased |
102 | arecommercial disputes within the Courts’required to be filed before the relevant Commercial Court / Commercial Division h a v i n g t h e r e l e v a n t t e r r i t o r i a l jurisdiction. The ‘Specified Value’ may differ from State to State, being prescribed by the relevant State Government in consultation with the concerned High Court, but will be above INR 0.3 million. This figure was decreasedjurisdiction, by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts ( Amendment) Act, 2018 . The said Amendment Act also provided for establishment of commercial courts at the district court level for the territories in respect of which the concerned High Courts have original jurisdiction.Pre-action conduct requirementsThe CPC does not prescribe any pre-action conduct requirements for ordinary civil suits. |
103 | Pre-action conduct requirementsThe CPC does not prescribe any pre-action conduct requirements for ordinary civil suits.Under the Commercial Courts Act, pre- institution mediation and settlement in accordance with procedure under the Commercial Courts (Pre-Institution Mediation & Settlement) Rules, 2018 is mandated prior to the plaintiff instituting a commercial suit. This pre-condition is mandatory in nature and commercialsuits filed without following this step, are liable to be rejected.5A dispute settled through such court sanctioned mediation can be decreed in Court, making it enforceable immediately in execution. However, this pre-condition is not compulsory where urgent interim relief has been applied for by the plaintiff.In case of a suit filed in respect of an oÆcial act against the Government of India, or any State, or a public oÆcer, at3 Definition of ‘commercial dispute’ is set out in End Note.4 The manner of determination of ‘specified value’ is set out in the End Note. |
104 | 3 Definition of ‘commercial dispute’ is set out in End Note.4 The manner of determination of ‘specified value’ is set out in the End Note.5 Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1.24.least two month’s advance written notice of the intention of filing such suit is required to be issued to the relevant Government entity, containing suÆcient details of the dispute and the claim. However, with the leave of the court, such a suit may be instituted even without the full two months’ notice. Urgent relief will be granted only after giving the Defendant a reasonable opportunity to defend itself.In case of civil proceedings against a foreign state, the Indian Government’s |
105 | least two month’s advance written notice of the intention of filing such suit is required to be issued to the relevant Government entity, containing suÆcient details of the dispute and the claim. However, with the leave of the court, such a suit may be instituted even without the full two months’ notice. Urgent relief will be granted only after giving the Defendant a reasonable opportunity to defend itself.In case of civil proceedings against a foreign state, the Indian Government’swritten consent is required prior to its institution. Consent will be granted only if the foreign state has subjected itself to the jurisdiction of an Indian court. Such submission to jurisdiction may be by the foreign state instituting proceedings in the Indian court against the proposed plaintiff, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction - provided that the consent to sue is requested in relation to such trade, or property. |
106 | written consent is required prior to its institution. Consent will be granted only if the foreign state has subjected itself to the jurisdiction of an Indian court. Such submission to jurisdiction may be by the foreign state instituting proceedings in the Indian court against the proposed plaintiff, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction - provided that the consent to sue is requested in relation to such trade, or property.Institution of Civil Proceedings before Commercial CourtsThe Commercial Courts Act has made several amendments to the CPC to simplify and speed up resolution of cases. While some of the procedure is similar to the procedure for filing suits before a regular civil court (for instance, a suit is commenced by filing a plaint containing the particulars as set out above), there are certain differences, some of which include: |
107 | Institution of Civil Proceedings before Commercial CourtsThe Commercial Courts Act has made several amendments to the CPC to simplify and speed up resolution of cases. While some of the procedure is similar to the procedure for filing suits before a regular civil court (for instance, a suit is commenced by filing a plaint containing the particulars as set out above), there are certain differences, some of which include:A suit which does not contemplate any urgent relief, cannot be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with procedure under the Commercial Courts (Pre-Institution Mediation & Settlement) Rules, 2018. A dispute s e t t l e d t h r o u g h s u c h c o u r tsanctioned mediation, can be decreed in Court, so making it enforceable immediately in execution. |
108 | The Commercial Courts Act has made several amendments to the CPC to simplify and speed up resolution of cases. While some of the procedure is similar to the procedure for filing suits before a regular civil court (for instance, a suit is commenced by filing a plaint containing the particulars as set out above), there are certain differences, some of which include:A suit which does not contemplate any urgent relief, cannot be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with procedure under the Commercial Courts (Pre-Institution Mediation & Settlement) Rules, 2018. A dispute s e t t l e d t h r o u g h s u c h c o u r tsanctioned mediation, can be decreed in Court, so making it enforceable immediately in execution.The Plaintiff must file a list of all documents in its power, control, custody or possession “pertaining to the suit” along with copies thereof, with the Plaint, when filing the same. |
109 | The Commercial Courts Act has made several amendments to the CPC to simplify and speed up resolution of cases. While some of the procedure is similar to the procedure for filing suits before a regular civil court (for instance, a suit is commenced by filing a plaint containing the particulars as set out above), there are certain differences, some of which include:A suit which does not contemplate any urgent relief, cannot be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with procedure under the Commercial Courts (Pre-Institution Mediation & Settlement) Rules, 2018. A dispute s e t t l e d t h r o u g h s u c h c o u r tsanctioned mediation, can be decreed in Court, so making it enforceable immediately in execution.The Plaintiff must file a list of all documents in its power, control, custody or possession “pertaining to the suit” along with copies thereof, with the Plaint, when filing the same.The defendant must file its Written Statement within 30 days and no later than 120 days from the date of service of summons, failing which, its right to file a written statement is forfeited. |
110 | A suit which does not contemplate any urgent relief, cannot be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with procedure under the Commercial Courts (Pre-Institution Mediation & Settlement) Rules, 2018. A dispute s e t t l e d t h r o u g h s u c h c o u r tsanctioned mediation, can be decreed in Court, so making it enforceable immediately in execution.The Plaintiff must file a list of all documents in its power, control, custody or possession “pertaining to the suit” along with copies thereof, with the Plaint, when filing the same.The defendant must file its Written Statement within 30 days and no later than 120 days from the date of service of summons, failing which, its right to file a written statement is forfeited.Parties are required to complete inspection within 30 days from filing of the Written Statement or Written Statement to the Counter Claim, whichever is later. The Court may25.. |
111 | extend the time for a further period not exceeding 30 days. Exemplary costs may be levied against a party who deliberately fails to disclose all relevant documents which are in their power, possession or control. Parties are required to file aÆdavits of admission and denial of documents disclosed and inspected within 15 days of completion of inspection or any later date fixed by the court.A case management hearing is required to be held no later than 4 weeks from the date of filing of aÆdavit of admission or denial of documents by all parties to the suit. At the case management hearing, the Court may pass orders framing issues, listing witness(es) to be examined by the parties, fixing dates for leading of evidence, fixing dates for filing of written arguments by the parties, fixing dates and time limits for oral arguments to be advanced by the parties etc. Should the party fail to |
112 | extend the time for a further period not exceeding 30 days. Exemplary costs may be levied against a party who deliberately fails to disclose all relevant documents which are in their power, possession or control. Parties are required to file aÆdavits of admission and denial of documents disclosed and inspected within 15 days of completion of inspection or any later date fixed by the court.A case management hearing is required to be held no later than 4 weeks from the date of filing of aÆdavit of admission or denial of documents by all parties to the suit. At the case management hearing, the Court may pass orders framing issues, listing witness(es) to be examined by the parties, fixing dates for leading of evidence, fixing dates for filing of written arguments by the parties, fixing dates and time limits for oral arguments to be advanced by the parties etc. Should the party fail tocomply with any order passed in a case management hearing, the court may, levy costs for such non- compliance; foreclose the non- complainant party’s right to file a Æ d a v i t s , c o n d u c t c r o s s examinations of witnesses, file written submissions, address oral a r g u m e n t s o r m a k e f u r t h e r arguments in trial; or, dismiss the plaint or allow the suit where such non-compliance is wilful, repeated and imposition of costs is not adequate to ensure compliance. |
113 | extend the time for a further period not exceeding 30 days. Exemplary costs may be levied against a party who deliberately fails to disclose all relevant documents which are in their power, possession or control. Parties are required to file aÆdavits of admission and denial of documents disclosed and inspected within 15 days of completion of inspection or any later date fixed by the court.A case management hearing is required to be held no later than 4 weeks from the date of filing of aÆdavit of admission or denial of documents by all parties to the suit. At the case management hearing, the Court may pass orders framing issues, listing witness(es) to be examined by the parties, fixing dates for leading of evidence, fixing dates for filing of written arguments by the parties, fixing dates and time limits for oral arguments to be advanced by the parties etc. Should the party fail tocomply with any order passed in a case management hearing, the court may, levy costs for such non- compliance; foreclose the non- complainant party’s right to file a Æ d a v i t s , c o n d u c t c r o s s examinations of witnesses, file written submissions, address oral a r g u m e n t s o r m a k e f u r t h e r arguments in trial; or, dismiss the plaint or allow the suit where such non-compliance is wilful, repeated and imposition of costs is not adequate to ensure compliance.Parties are required to submit written a r g u m e n ts , 4 w e e k s p r io r to c o m m e n c in g o ra l a r g u m e n ts, f o l l o w e d b y r e v i s e d w r i t t e n arguments, if any, within 1 week of completion of oral arguments. Arguments are required to be closed no later than 6 months from the date of the first case management meeting. Judgment is required to be pronounced within 90 days of conclusion of arguments. |
114 | extend the time for a further period not exceeding 30 days. Exemplary costs may be levied against a party who deliberately fails to disclose all relevant documents which are in their power, possession or control. Parties are required to file aÆdavits of admission and denial of documents disclosed and inspected within 15 days of completion of inspection or any later date fixed by the court.A case management hearing is required to be held no later than 4 weeks from the date of filing of aÆdavit of admission or denial of documents by all parties to the suit. At the case management hearing, the Court may pass orders framing issues, listing witness(es) to be examined by the parties, fixing dates for leading of evidence, fixing dates for filing of written arguments by the parties, fixing dates and time limits for oral arguments to be advanced by the parties etc. Should the party fail tocomply with any order passed in a case management hearing, the court may, levy costs for such non- compliance; foreclose the non- complainant party’s right to file a Æ d a v i t s , c o n d u c t c r o s s examinations of witnesses, file written submissions, address oral a r g u m e n t s o r m a k e f u r t h e r arguments in trial; or, dismiss the plaint or allow the suit where such non-compliance is wilful, repeated and imposition of costs is not adequate to ensure compliance.Parties are required to submit written a r g u m e n ts , 4 w e e k s p r io r to c o m m e n c in g o ra l a r g u m e n ts, f o l l o w e d b y r e v i s e d w r i t t e n arguments, if any, within 1 week of completion of oral arguments. Arguments are required to be closed no later than 6 months from the date of the first case management meeting. Judgment is required to be pronounced within 90 days of conclusion of arguments. |
115 | A case management hearing is required to be held no later than 4 weeks from the date of filing of aÆdavit of admission or denial of documents by all parties to the suit. At the case management hearing, the Court may pass orders framing issues, listing witness(es) to be examined by the parties, fixing dates for leading of evidence, fixing dates for filing of written arguments by the parties, fixing dates and time limits for oral arguments to be advanced by the parties etc. Should the party fail tocomply with any order passed in a case management hearing, the court may, levy costs for such non- compliance; foreclose the non- complainant party’s right to file a Æ d a v i t s , c o n d u c t c r o s s examinations of witnesses, file written submissions, address oral a r g u m e n t s o r m a k e f u r t h e r arguments in trial; or, dismiss the plaint or allow the suit where such non-compliance is wilful, repeated and imposition of costs is not adequate to ensure compliance.Parties are required to submit written a r g u m e n ts , 4 w e e k s p r io r to c o m m e n c in g o ra l a r g u m e n ts, f o l l o w e d b y r e v i s e d w r i t t e n arguments, if any, within 1 week of completion of oral arguments. Arguments are required to be closed no later than 6 months from the date of the first case management meeting. Judgment is required to be pronounced within 90 days of conclusion of arguments. |
116 | comply with any order passed in a case management hearing, the court may, levy costs for such non- compliance; foreclose the non- complainant party’s right to file a Æ d a v i t s , c o n d u c t c r o s s examinations of witnesses, file written submissions, address oral a r g u m e n t s o r m a k e f u r t h e r arguments in trial; or, dismiss the plaint or allow the suit where such non-compliance is wilful, repeated and imposition of costs is not adequate to ensure compliance.Parties are required to submit written a r g u m e n ts , 4 w e e k s p r io r to c o m m e n c in g o ra l a r g u m e n ts, f o l l o w e d b y r e v i s e d w r i t t e n arguments, if any, within 1 week of completion of oral arguments. Arguments are required to be closed no later than 6 months from the date of the first case management meeting. Judgment is required to be pronounced within 90 days of conclusion of arguments.Summary Suits in Civil Proceedings under Order 37 of the CPC6 |
117 | Summary Suits in Civil Proceedings under Order 37 of the CPC6A plaintiff may file a summary suit for monetary claims upon negotiable instruments (such as bills of exchange, hundis and promissory notes), or for recovery of debt or liquidated demand arising on a written contract, or on a guarantee. No relief other than amonetary decree may be claimed in such a suit. Where any other relief is sought, the plaintiff must file a regular civil suit under ordinary civil procedure.Where a suit is instituted as a summary suit, the defendant is not entitled to6 Order 37, Rules 1-3 are set out in the End Note.26..defend as a matter of right, but must apply to the court for leave to defend and while so applying, be able to establish a prima facie defence in his favour. If he / she establishes a defence to the satisfaction of the court, the defendant is granted leave to defend and the summary suit is transferred to the list of |
118 | defend as a matter of right, but must apply to the court for leave to defend and while so applying, be able to establish a prima facie defence in his favour. If he / she establishes a defence to the satisfaction of the court, the defendant is granted leave to defend and the summary suit is transferred to the list ofcommercial causes to be tried as an ordinary suit. Leave to defend may be unconditional, or conditional upon deposit by the defendant of the whole, or part of the claim amount. If no defence is made out, the court may pass summary judgment on the suit.Summary Judgments under the Commercial Courts ActA party may apply for a summary judgment, at any time after the writ of summons is served on the defendant but prior to framing of issues. |
119 | Summary Judgments under the Commercial Courts ActA party may apply for a summary judgment, at any time after the writ of summons is served on the defendant but prior to framing of issues.The court may give a summary judgment against a plaintiff or defendant, if the court considers that, (a) the plaintiff has no real prospect of succeeding in its claim or the defendant has no real prospect of successfully defending the claim; and (b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.Either party may submit documentary evidence for consideration and the courtmay make its decision without recording oral evidence.The court may pass such orders as deemed fit including:I. judgment on the claim;conditional order;dismissing a part of the claim and judgment on the remainder;striking out pleadings;directions to proceed to case management; andcosts.Class Actions |
120 | Class ActionsVarious Indian statutes including Companies Act and the Consumer Protection Act, 2019, have codified the law on class actions. The CPC also provides for a remedy by way of a representative action (similar to a classa c t i o n ) . H o w e v e r , c l a s s a c t i o n jurisprudence in India is still developing and remains largely untested as on date.Under the Companies Act, a minimum number of members or depositors of a27..company 7( other than a bankingGovernments are also empowered to filecompany), may seek redressal as a class, from the NCLT, against the company, its directors, auditors, experts, advisers or consultants for any fraudulent, unlawful or wrongful acts that are prejudicial to the interests of the company, or its members or depositors, or are against public interest. |
121 | ( other than a bankingGovernments are also empowered to filecompany), may seek redressal as a class, from the NCLT, against the company, its directors, auditors, experts, advisers or consultants for any fraudulent, unlawful or wrongful acts that are prejudicial to the interests of the company, or its members or depositors, or are against public interest.Under the Consumer Protection Act, one or more consumers having a common interest in relation to any goods sold or services provided, and seeking relief on behalf of or for the benefit of the group, may file a class action on behalf of such group, with the permission of the relevant consumer dispute redressal commission at the District, State ora complaint either in their individual or representative capacity for the interests of consumers at large. |
122 | company), may seek redressal as a class, from the NCLT, against the company, its directors, auditors, experts, advisers or consultants for any fraudulent, unlawful or wrongful acts that are prejudicial to the interests of the company, or its members or depositors, or are against public interest.Under the Consumer Protection Act, one or more consumers having a common interest in relation to any goods sold or services provided, and seeking relief on behalf of or for the benefit of the group, may file a class action on behalf of such group, with the permission of the relevant consumer dispute redressal commission at the District, State ora complaint either in their individual or representative capacity for the interests of consumers at large.Additionally, Order 1 Rule 8 of the CPC enables a group of plaintiffs to collectively file a civil suit, with the p e r m i s s i o n o f t h e c o u r t , i n a representative capacity for the benefit of a group or class of persons having a common interest in the subject matter of the suit. This provision is an exception to the general rule that all persons interested in a suit should be made parties thereto. |
123 | company), may seek redressal as a class, from the NCLT, against the company, its directors, auditors, experts, advisers or consultants for any fraudulent, unlawful or wrongful acts that are prejudicial to the interests of the company, or its members or depositors, or are against public interest.Under the Consumer Protection Act, one or more consumers having a common interest in relation to any goods sold or services provided, and seeking relief on behalf of or for the benefit of the group, may file a class action on behalf of such group, with the permission of the relevant consumer dispute redressal commission at the District, State ora complaint either in their individual or representative capacity for the interests of consumers at large.Additionally, Order 1 Rule 8 of the CPC enables a group of plaintiffs to collectively file a civil suit, with the p e r m i s s i o n o f t h e c o u r t , i n a representative capacity for the benefit of a group or class of persons having a common interest in the subject matter of the suit. This provision is an exception to the general rule that all persons interested in a suit should be made parties thereto.A decree passed by the court is binding on all interested persons forming part of the group or class. |
124 | Under the Consumer Protection Act, one or more consumers having a common interest in relation to any goods sold or services provided, and seeking relief on behalf of or for the benefit of the group, may file a class action on behalf of such group, with the permission of the relevant consumer dispute redressal commission at the District, State ora complaint either in their individual or representative capacity for the interests of consumers at large.Additionally, Order 1 Rule 8 of the CPC enables a group of plaintiffs to collectively file a civil suit, with the p e r m i s s i o n o f t h e c o u r t , i n a representative capacity for the benefit of a group or class of persons having a common interest in the subject matter of the suit. This provision is an exception to the general rule that all persons interested in a suit should be made parties thereto.A decree passed by the court is binding on all interested persons forming part of the group or class. |
125 | a complaint either in their individual or representative capacity for the interests of consumers at large.Additionally, Order 1 Rule 8 of the CPC enables a group of plaintiffs to collectively file a civil suit, with the p e r m i s s i o n o f t h e c o u r t , i n a representative capacity for the benefit of a group or class of persons having a common interest in the subject matter of the suit. This provision is an exception to the general rule that all persons interested in a suit should be made parties thereto.A decree passed by the court is binding on all interested persons forming part of the group or class.National level.8 The Central and State7 Section 245(3) of the Companies Act read with Rule 2 of the National Company Law Tribunal (Second Amendment) Rules, 2019In respect of a company with share capital:the lesser of 5% of the total number of members of the company or 100 members; orin a listed company – members holding at least 2% of the issued share capital; or |
126 | 7 Section 245(3) of the Companies Act read with Rule 2 of the National Company Law Tribunal (Second Amendment) Rules, 2019In respect of a company with share capital:the lesser of 5% of the total number of members of the company or 100 members; orin a listed company – members holding at least 2% of the issued share capital; orin an unlisted company – members holding at least 5% of the issued share capital.In respect of a company without share capital – at least ⅕ (one-fifth) of the total number of members;In case of an action by depositors:the lesser of 5% of the total number of depositors or 100 depositors of the company; orsuch number of depositors to whom the company owes 5% of the total deposits.8 Section 35(1) read with section 49(1) and 59(1) of the Consumer Protection Act.28.Evidence |
127 | EvidenceThe Indian Evidence Act, 1872, contains provisions governing admissibility of any evidence in the Indian courts. Evidence may be documentary (digital records and e m a i l c o m m u n ic a t io n s a r e a ls o admissible), or oral, through witness testimony. Witness testimony must be d i r e c t a n d h e a r s a y ev id e n c e i s inadmissible, except in certain limited circumstances.Evidence in chief is led by the witness filing an aÆdavit of evidence. The court may however, for reasons recorded in writing, allow evidence in chief to be led by examination of the witness in open court. A witness who is outside the jurisdiction of the Court or cannot attend Court may also be examined by way of a commission. The counter-party has the right to cross-examine the witness (although this right may be waived). The Court also has the power to put questions to the witness. Re-examination of a |
128 | The Indian Evidence Act, 1872, contains provisions governing admissibility of any evidence in the Indian courts. Evidence may be documentary (digital records and e m a i l c o m m u n ic a t io n s a r e a ls o admissible), or oral, through witness testimony. Witness testimony must be d i r e c t a n d h e a r s a y ev id e n c e i s inadmissible, except in certain limited circumstances.Evidence in chief is led by the witness filing an aÆdavit of evidence. The court may however, for reasons recorded in writing, allow evidence in chief to be led by examination of the witness in open court. A witness who is outside the jurisdiction of the Court or cannot attend Court may also be examined by way of a commission. The counter-party has the right to cross-examine the witness (although this right may be waived). The Court also has the power to put questions to the witness. Re-examination of awitness is permissible only under limited circumstances and in relation to questions arising directly out of the cross-examination. |
129 | The Indian Evidence Act, 1872, contains provisions governing admissibility of any evidence in the Indian courts. Evidence may be documentary (digital records and e m a i l c o m m u n ic a t io n s a r e a ls o admissible), or oral, through witness testimony. Witness testimony must be d i r e c t a n d h e a r s a y ev id e n c e i s inadmissible, except in certain limited circumstances.Evidence in chief is led by the witness filing an aÆdavit of evidence. The court may however, for reasons recorded in writing, allow evidence in chief to be led by examination of the witness in open court. A witness who is outside the jurisdiction of the Court or cannot attend Court may also be examined by way of a commission. The counter-party has the right to cross-examine the witness (although this right may be waived). The Court also has the power to put questions to the witness. Re-examination of awitness is permissible only under limited circumstances and in relation to questions arising directly out of the cross-examination.Witnesses must testify under oath before the court and may be liable for the offence of perjury under the Indian Penal Code 1860 if they testify falsely. |
130 | The Indian Evidence Act, 1872, contains provisions governing admissibility of any evidence in the Indian courts. Evidence may be documentary (digital records and e m a i l c o m m u n ic a t io n s a r e a ls o admissible), or oral, through witness testimony. Witness testimony must be d i r e c t a n d h e a r s a y ev id e n c e i s inadmissible, except in certain limited circumstances.Evidence in chief is led by the witness filing an aÆdavit of evidence. The court may however, for reasons recorded in writing, allow evidence in chief to be led by examination of the witness in open court. A witness who is outside the jurisdiction of the Court or cannot attend Court may also be examined by way of a commission. The counter-party has the right to cross-examine the witness (although this right may be waived). The Court also has the power to put questions to the witness. Re-examination of awitness is permissible only under limited circumstances and in relation to questions arising directly out of the cross-examination.Witnesses must testify under oath before the court and may be liable for the offence of perjury under the Indian Penal Code 1860 if they testify falsely. |
131 | Evidence in chief is led by the witness filing an aÆdavit of evidence. The court may however, for reasons recorded in writing, allow evidence in chief to be led by examination of the witness in open court. A witness who is outside the jurisdiction of the Court or cannot attend Court may also be examined by way of a commission. The counter-party has the right to cross-examine the witness (although this right may be waived). The Court also has the power to put questions to the witness. Re-examination of awitness is permissible only under limited circumstances and in relation to questions arising directly out of the cross-examination.Witnesses must testify under oath before the court and may be liable for the offence of perjury under the Indian Penal Code 1860 if they testify falsely.Interim Relief:Powers of the court to grant Interim Relief |
132 | Interim Relief:Powers of the court to grant Interim ReliefIndian courts have extensive powers to grant interim relief as a measure of protection to preserve some property or the rights of a party pending the final disposal of a suit. A party seeking interim relief should satisfy the court of the following three conditions:there is a prima facie case in favour of the party seeking the order;irreparable damage defeating the very purpose of the suit may be caused to the party if the relief is not granted; andthe balance of convenience lies with the party requesting the order.29..Types of Interim Reliefs |
133 | Types of Interim ReliefsAttachment before Judgment: The court, if satisfied that the defendant, with intent to obstruct, or delay the execution of any decree that may be passed against it, is about to abscond, or leave the local limits of the court’s jurisdiction; or, remove / dispose of the whole, or any part of its property from the jurisdiction of the court, it may require the defendant to furnish security to produce and place at the disposal of the court when required, the property, or the value of the same as may be suÆcient to satisfy the decree. In making such an order, the c o u r t m ay d i r e c t c o n d i t io n a l attachment of the whole, or any portion of the property of the defendant. If the defendant fails to show cause against attachment, or fails to furnish the security required, the court may order that property (suÆcient to satisfy any decree which may be passed in the suit) be attached. |
134 | Attachment before Judgment: The court, if satisfied that the defendant, with intent to obstruct, or delay the execution of any decree that may be passed against it, is about to abscond, or leave the local limits of the court’s jurisdiction; or, remove / dispose of the whole, or any part of its property from the jurisdiction of the court, it may require the defendant to furnish security to produce and place at the disposal of the court when required, the property, or the value of the same as may be suÆcient to satisfy the decree. In making such an order, the c o u r t m ay d i r e c t c o n d i t io n a l attachment of the whole, or any portion of the property of the defendant. If the defendant fails to show cause against attachment, or fails to furnish the security required, the court may order that property (suÆcient to satisfy any decree which may be passed in the suit) be attached.The attachment will not affect rights over assets or properties which were in existence prior to the attachment, of persons not parties to the suit (for example a tenancy). |
135 | Attachment before Judgment: The court, if satisfied that the defendant, with intent to obstruct, or delay the execution of any decree that may be passed against it, is about to abscond, or leave the local limits of the court’s jurisdiction; or, remove / dispose of the whole, or any part of its property from the jurisdiction of the court, it may require the defendant to furnish security to produce and place at the disposal of the court when required, the property, or the value of the same as may be suÆcient to satisfy the decree. In making such an order, the c o u r t m ay d i r e c t c o n d i t io n a l attachment of the whole, or any portion of the property of the defendant. If the defendant fails to show cause against attachment, or fails to furnish the security required, the court may order that property (suÆcient to satisfy any decree which may be passed in the suit) be attached.The attachment will not affect rights over assets or properties which were in existence prior to the attachment, of persons not parties to the suit (for example a tenancy).Injunction: A court may pass orders of temporary injunction restraining a defendant from taking some action, where it is satisfied that the property |
136 | Attachment before Judgment: The court, if satisfied that the defendant, with intent to obstruct, or delay the execution of any decree that may be passed against it, is about to abscond, or leave the local limits of the court’s jurisdiction; or, remove / dispose of the whole, or any part of its property from the jurisdiction of the court, it may require the defendant to furnish security to produce and place at the disposal of the court when required, the property, or the value of the same as may be suÆcient to satisfy the decree. In making such an order, the c o u r t m ay d i r e c t c o n d i t io n a l attachment of the whole, or any portion of the property of the defendant. If the defendant fails to show cause against attachment, or fails to furnish the security required, the court may order that property (suÆcient to satisfy any decree which may be passed in the suit) be attached.The attachment will not affect rights over assets or properties which were in existence prior to the attachment, of persons not parties to the suit (for example a tenancy).Injunction: A court may pass orders of temporary injunction restraining a defendant from taking some action, where it is satisfied that the propertyin dispute in the suit is in danger of waste, damage, alienation, or that the defendant threatens, or intends to remove, or dispose of its property with a view to defraud its creditors. |
137 | Attachment before Judgment: The court, if satisfied that the defendant, with intent to obstruct, or delay the execution of any decree that may be passed against it, is about to abscond, or leave the local limits of the court’s jurisdiction; or, remove / dispose of the whole, or any part of its property from the jurisdiction of the court, it may require the defendant to furnish security to produce and place at the disposal of the court when required, the property, or the value of the same as may be suÆcient to satisfy the decree. In making such an order, the c o u r t m ay d i r e c t c o n d i t io n a l attachment of the whole, or any portion of the property of the defendant. If the defendant fails to show cause against attachment, or fails to furnish the security required, the court may order that property (suÆcient to satisfy any decree which may be passed in the suit) be attached.The attachment will not affect rights over assets or properties which were in existence prior to the attachment, of persons not parties to the suit (for example a tenancy).Injunction: A court may pass orders of temporary injunction restraining a defendant from taking some action, where it is satisfied that the propertyin dispute in the suit is in danger of waste, damage, alienation, or that the defendant threatens, or intends to remove, or dispose of its property with a view to defraud its creditors.Status quo Order: Status quo generally refers to the existing state of affairs, or circumstances. In some respects, similar to an injunction, a status quo order may be issued to prevent any of the parties involved in a suit from taking any action that may alter the existing state of things. The intent of such an order is to prevent harm, or preserve the existing conditions, so that a party's position is not prejudiced in the interim. |
138 | The attachment will not affect rights over assets or properties which were in existence prior to the attachment, of persons not parties to the suit (for example a tenancy).Injunction: A court may pass orders of temporary injunction restraining a defendant from taking some action, where it is satisfied that the propertyin dispute in the suit is in danger of waste, damage, alienation, or that the defendant threatens, or intends to remove, or dispose of its property with a view to defraud its creditors.Status quo Order: Status quo generally refers to the existing state of affairs, or circumstances. In some respects, similar to an injunction, a status quo order may be issued to prevent any of the parties involved in a suit from taking any action that may alter the existing state of things. The intent of such an order is to prevent harm, or preserve the existing conditions, so that a party's position is not prejudiced in the interim.Receiver: A court is empowered to appoint a receiver of any property when it is just and convenient to do so. In a mortgagee’ s suit for foreclosure, or sale, where the mortgagee is entitled to enter into possession on default of payment of the mortgage money, the mortgagee is prima facie entitled to the appointment of receiver. |
139 | Injunction: A court may pass orders of temporary injunction restraining a defendant from taking some action, where it is satisfied that the propertyin dispute in the suit is in danger of waste, damage, alienation, or that the defendant threatens, or intends to remove, or dispose of its property with a view to defraud its creditors.Status quo Order: Status quo generally refers to the existing state of affairs, or circumstances. In some respects, similar to an injunction, a status quo order may be issued to prevent any of the parties involved in a suit from taking any action that may alter the existing state of things. The intent of such an order is to prevent harm, or preserve the existing conditions, so that a party's position is not prejudiced in the interim.Receiver: A court is empowered to appoint a receiver of any property when it is just and convenient to do so. In a mortgagee’ s suit for foreclosure, or sale, where the mortgagee is entitled to enter into possession on default of payment of the mortgage money, the mortgagee is prima facie entitled to the appointment of receiver.Other Orders: A court may pass such interim orders as may be necessary to preserve the subject matter of the dispute or the rights of the parties, for example, disclosure of assets, furnishing of security, etc. |
140 | in dispute in the suit is in danger of waste, damage, alienation, or that the defendant threatens, or intends to remove, or dispose of its property with a view to defraud its creditors.Status quo Order: Status quo generally refers to the existing state of affairs, or circumstances. In some respects, similar to an injunction, a status quo order may be issued to prevent any of the parties involved in a suit from taking any action that may alter the existing state of things. The intent of such an order is to prevent harm, or preserve the existing conditions, so that a party's position is not prejudiced in the interim.Receiver: A court is empowered to appoint a receiver of any property when it is just and convenient to do so. In a mortgagee’ s suit for foreclosure, or sale, where the mortgagee is entitled to enter into possession on default of payment of the mortgage money, the mortgagee is prima facie entitled to the appointment of receiver.Other Orders: A court may pass such interim orders as may be necessary to preserve the subject matter of the dispute or the rights of the parties, for example, disclosure of assets, furnishing of security, etc. |
141 | Status quo Order: Status quo generally refers to the existing state of affairs, or circumstances. In some respects, similar to an injunction, a status quo order may be issued to prevent any of the parties involved in a suit from taking any action that may alter the existing state of things. The intent of such an order is to prevent harm, or preserve the existing conditions, so that a party's position is not prejudiced in the interim.Receiver: A court is empowered to appoint a receiver of any property when it is just and convenient to do so. In a mortgagee’ s suit for foreclosure, or sale, where the mortgagee is entitled to enter into possession on default of payment of the mortgage money, the mortgagee is prima facie entitled to the appointment of receiver.Other Orders: A court may pass such interim orders as may be necessary to preserve the subject matter of the dispute or the rights of the parties, for example, disclosure of assets, furnishing of security, etc.30. |
142 | Ex-Parte Orders in case of urgencyIn cases of urgency, such as where the rights of a plaintiff may be defeated should such relief not be granted immediately, a court may pass an ad- interim order granting relief, on an ex parte basis, without directing notice to beissued to the defendant. In such an event, the defendant may apply for vacation / modification of the order passed and after hearing the parties, the order may be vacated, modified, or confirmed.Undertaking by a party applying for interim relief to pay damagesCertain courts, for instance the Bombay High Court, mandate a party to whom interim relief has been granted, to provide a written undertaking before such order granting interim relief isissued, to pay damages as the court may award to compensate the other party in the event the other party is affected or prejudiced by such order.Substantive / Final Relief |
143 | Substantive / Final ReliefIndian courts have wide powers to mould the reliefs and to make such orders as may be necessary to meet the ends of justice and to award substantive relief. Such relief includes declarations of title,or status, specific performance of contracts, permanent injunctions, damages, accounts, etc. Punitive or exemplary damages may be awarded in exceptional circumstances.31..Specific PerformanceP r i o r t o t h e S p e c i f i c R e l i e f ( A me n d me n t ) Ac t , 2 0 1 8 ( “ SR Amendment Act”)Prior to the SR Amendment Act, the grant of specific performance of a contract under the Specific Relief Act, 1963, was discretionary. Specific performance could be granted only where, (a) there existed no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done and of which specific performance was sought; or |
144 | P r i o r t o t h e S p e c i f i c R e l i e f ( A me n d me n t ) Ac t , 2 0 1 8 ( “ SR Amendment Act”)Prior to the SR Amendment Act, the grant of specific performance of a contract under the Specific Relief Act, 1963, was discretionary. Specific performance could be granted only where, (a) there existed no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done and of which specific performance was sought; or(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief. |
145 | P r i o r t o t h e S p e c i f i c R e l i e f ( A me n d me n t ) Ac t , 2 0 1 8 ( “ SR Amendment Act”)Prior to the SR Amendment Act, the grant of specific performance of a contract under the Specific Relief Act, 1963, was discretionary. Specific performance could be granted only where, (a) there existed no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done and of which specific performance was sought; or(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.Certain contracts could not be specifically enforced, such as contracts where, ( a) the non- performance of which compensation would be an adequate relief; (b) the contract runs into such minute or numerous details or which is so d e p e n d e n t o n t h e p e r s o n a l qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) the contract is, in its nature d e t e r m i n a b l e ; a n d ( d ) t h e performance of which involves the performance of a continuous duty which the court cannot supervise. |
146 | P r i o r t o t h e S p e c i f i c R e l i e f ( A me n d me n t ) Ac t , 2 0 1 8 ( “ SR Amendment Act”)Prior to the SR Amendment Act, the grant of specific performance of a contract under the Specific Relief Act, 1963, was discretionary. Specific performance could be granted only where, (a) there existed no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done and of which specific performance was sought; or(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.Certain contracts could not be specifically enforced, such as contracts where, ( a) the non- performance of which compensation would be an adequate relief; (b) the contract runs into such minute or numerous details or which is so d e p e n d e n t o n t h e p e r s o n a l qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) the contract is, in its nature d e t e r m i n a b l e ; a n d ( d ) t h e performance of which involves the performance of a continuous duty which the court cannot supervise.After the SR Amendment Act |
147 | Prior to the SR Amendment Act, the grant of specific performance of a contract under the Specific Relief Act, 1963, was discretionary. Specific performance could be granted only where, (a) there existed no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done and of which specific performance was sought; or(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.Certain contracts could not be specifically enforced, such as contracts where, ( a) the non- performance of which compensation would be an adequate relief; (b) the contract runs into such minute or numerous details or which is so d e p e n d e n t o n t h e p e r s o n a l qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) the contract is, in its nature d e t e r m i n a b l e ; a n d ( d ) t h e performance of which involves the performance of a continuous duty which the court cannot supervise.After the SR Amendment ActThe SR Amendment Act came into force on October 1, 2018. It limits the court’s discretion by making specific relief mandatory as opposed to discretionary. The Court may grant specific performance of contracts |
148 | (b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.Certain contracts could not be specifically enforced, such as contracts where, ( a) the non- performance of which compensation would be an adequate relief; (b) the contract runs into such minute or numerous details or which is so d e p e n d e n t o n t h e p e r s o n a l qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) the contract is, in its nature d e t e r m i n a b l e ; a n d ( d ) t h e performance of which involves the performance of a continuous duty which the court cannot supervise.After the SR Amendment ActThe SR Amendment Act came into force on October 1, 2018. It limits the court’s discretion by making specific relief mandatory as opposed to discretionary. The Court may grant specific performance of contracts(a) in which there exist no standards to ascertain the actual damage caused by non-performance of such contracts, or (b) wherein the act agreed to be done is such that monetary compensation for non- performance would not afford adequate relief to the party suffering breach. Further, a rebuttable presumption is created that breach of contract for transfer of immovable property cannot be adequately relieved by monetary compensation, whereas breach of contract for transfer of movable property may be relieved by monetary compensation, except inter alia, when the subject matter of the contract is not an ordinary article of commerce, or is of special value to the buyer, or consists of goods which are not readily obtainable in the market. The Act in its present form gives a discretionary power to the courts to award specific performance only in exceptional cases, with monetary compensation being the norm. |
149 | Certain contracts could not be specifically enforced, such as contracts where, ( a) the non- performance of which compensation would be an adequate relief; (b) the contract runs into such minute or numerous details or which is so d e p e n d e n t o n t h e p e r s o n a l qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) the contract is, in its nature d e t e r m i n a b l e ; a n d ( d ) t h e performance of which involves the performance of a continuous duty which the court cannot supervise.After the SR Amendment ActThe SR Amendment Act came into force on October 1, 2018. It limits the court’s discretion by making specific relief mandatory as opposed to discretionary. The Court may grant specific performance of contracts(a) in which there exist no standards to ascertain the actual damage caused by non-performance of such contracts, or (b) wherein the act agreed to be done is such that monetary compensation for non- performance would not afford adequate relief to the party suffering breach. Further, a rebuttable presumption is created that breach of contract for transfer of immovable property cannot be adequately relieved by monetary compensation, whereas breach of contract for transfer of movable property may be relieved by monetary compensation, except inter alia, when the subject matter of the contract is not an ordinary article of commerce, or is of special value to the buyer, or consists of goods which are not readily obtainable in the market. The Act in its present form gives a discretionary power to the courts to award specific performance only in exceptional cases, with monetary compensation being the norm. |
150 | After the SR Amendment ActThe SR Amendment Act came into force on October 1, 2018. It limits the court’s discretion by making specific relief mandatory as opposed to discretionary. The Court may grant specific performance of contracts(a) in which there exist no standards to ascertain the actual damage caused by non-performance of such contracts, or (b) wherein the act agreed to be done is such that monetary compensation for non- performance would not afford adequate relief to the party suffering breach. Further, a rebuttable presumption is created that breach of contract for transfer of immovable property cannot be adequately relieved by monetary compensation, whereas breach of contract for transfer of movable property may be relieved by monetary compensation, except inter alia, when the subject matter of the contract is not an ordinary article of commerce, or is of special value to the buyer, or consists of goods which are not readily obtainable in the market. The Act in its present form gives a discretionary power to the courts to award specific performance only in exceptional cases, with monetary compensation being the norm. |
151 | The SR Amendment Act came into force on October 1, 2018. It limits the court’s discretion by making specific relief mandatory as opposed to discretionary. The Court may grant specific performance of contracts(a) in which there exist no standards to ascertain the actual damage caused by non-performance of such contracts, or (b) wherein the act agreed to be done is such that monetary compensation for non- performance would not afford adequate relief to the party suffering breach. Further, a rebuttable presumption is created that breach of contract for transfer of immovable property cannot be adequately relieved by monetary compensation, whereas breach of contract for transfer of movable property may be relieved by monetary compensation, except inter alia, when the subject matter of the contract is not an ordinary article of commerce, or is of special value to the buyer, or consists of goods which are not readily obtainable in the market. The Act in its present form gives a discretionary power to the courts to award specific performance only in exceptional cases, with monetary compensation being the norm. |
152 | (a) in which there exist no standards to ascertain the actual damage caused by non-performance of such contracts, or (b) wherein the act agreed to be done is such that monetary compensation for non- performance would not afford adequate relief to the party suffering breach. Further, a rebuttable presumption is created that breach of contract for transfer of immovable property cannot be adequately relieved by monetary compensation, whereas breach of contract for transfer of movable property may be relieved by monetary compensation, except inter alia, when the subject matter of the contract is not an ordinary article of commerce, or is of special value to the buyer, or consists of goods which are not readily obtainable in the market. The Act in its present form gives a discretionary power to the courts to award specific performance only in exceptional cases, with monetary compensation being the norm.32. |
153 | The nature of contracts for which specific performance may be denied has been made narrower, i.e. in the following circumstances: (a) where a party to the contract has obtained substituted performance; (b) where directing specific performance would involve the performance of a continuous duty which a court cannot supervise; (c) where the contract is so d e p e n d e n t o n t h e p e r s o n a l qualifications of the parties that the court cannot enforce specific performance of its material terms; (d) where a contract is determinable in nature.Substituted PerformanceThe concept of allowing the innocent p a r t y t o o b t a i n s u b s t i t u t e d performance from a third party or its own agency and recover expenses and costs actually incurred or suffered, from the breaching party, has been introduced by the SRA Amendment A c t . O n c e s u c h s u b s t i t u t e d performance has been obtained, theinnocent party is not entitled to seek specific performance. |
154 | The nature of contracts for which specific performance may be denied has been made narrower, i.e. in the following circumstances: (a) where a party to the contract has obtained substituted performance; (b) where directing specific performance would involve the performance of a continuous duty which a court cannot supervise; (c) where the contract is so d e p e n d e n t o n t h e p e r s o n a l qualifications of the parties that the court cannot enforce specific performance of its material terms; (d) where a contract is determinable in nature.Substituted PerformanceThe concept of allowing the innocent p a r t y t o o b t a i n s u b s t i t u t e d performance from a third party or its own agency and recover expenses and costs actually incurred or suffered, from the breaching party, has been introduced by the SRA Amendment A c t . O n c e s u c h s u b s t i t u t e d performance has been obtained, theinnocent party is not entitled to seek specific performance.Special status to Infrastructure projects |
155 | Substituted PerformanceThe concept of allowing the innocent p a r t y t o o b t a i n s u b s t i t u t e d performance from a third party or its own agency and recover expenses and costs actually incurred or suffered, from the breaching party, has been introduced by the SRA Amendment A c t . O n c e s u c h s u b s t i t u t e d performance has been obtained, theinnocent party is not entitled to seek specific performance.Special status to Infrastructure projectsAn all new section provides that in case of contractual disputes relating to infrastructure projects, the court shall not grant an injunction in any suit, where it would cause hindrance or delay in the continuance or completion of the infrastructure project.Costs |
156 | CostsIndian law recognises the principle that costs follow the event i.e. the costs of legal proceedings are awarded to the successful litigant. Courts are also empowered to direct payment of compensatory costs by a party who frivolously delays proceedings, or knowingly raises false, or vexatiousclaims, or defences. The awarding of costs is up to the discretion of the court and the court has the power to determine by whom, or out of what property and to what extent such costs are to be paid. In p ra c t ic e th e c o sts a w a rd e d a r e substantially lower than the costs actually incurred, although the new33..Commercial Courts Act provides for a general rule for payment of costs by the judgment debtor and sets out the basis of awarding costs. |
157 | Commercial Courts Act provides for a general rule for payment of costs by the judgment debtor and sets out the basis of awarding costs.Indian courts may order security for costs from a plaintiff not resident in India, if it does not possess suÆcient immovable property, or assets in India to satisfy any decree that may be passed against him. In cases where the subject of the suit is immoveable property, courts will direct such plaintiffs, who do not possess suÆcient immoveable property in India, to furnish security for any anticipated costs on the defendant. The quantum of such anticipated costs and required security is left to the discretion of the courts. Where such security is directed to be furnished by a plaintiff, the suit may be dismissed if such security is not provided. |
158 | Commercial Courts Act provides for a general rule for payment of costs by the judgment debtor and sets out the basis of awarding costs.Indian courts may order security for costs from a plaintiff not resident in India, if it does not possess suÆcient immovable property, or assets in India to satisfy any decree that may be passed against him. In cases where the subject of the suit is immoveable property, courts will direct such plaintiffs, who do not possess suÆcient immoveable property in India, to furnish security for any anticipated costs on the defendant. The quantum of such anticipated costs and required security is left to the discretion of the courts. Where such security is directed to be furnished by a plaintiff, the suit may be dismissed if such security is not provided.The amendments made to the CPC by the Commercial Courts Act ensures that the commercial court has wide discretion to determine, whether costs are payable, by whom and what quantum. Certain points that may be kept in mind are: |
159 | Commercial Courts Act provides for a general rule for payment of costs by the judgment debtor and sets out the basis of awarding costs.Indian courts may order security for costs from a plaintiff not resident in India, if it does not possess suÆcient immovable property, or assets in India to satisfy any decree that may be passed against him. In cases where the subject of the suit is immoveable property, courts will direct such plaintiffs, who do not possess suÆcient immoveable property in India, to furnish security for any anticipated costs on the defendant. The quantum of such anticipated costs and required security is left to the discretion of the courts. Where such security is directed to be furnished by a plaintiff, the suit may be dismissed if such security is not provided.The amendments made to the CPC by the Commercial Courts Act ensures that the commercial court has wide discretion to determine, whether costs are payable, by whom and what quantum. Certain points that may be kept in mind are:Costs shall mean ‘reasonable costs’, relating to fees and expenses of witnesses, legal fees and expenses, any other expenses incurred in connection therewith. |
160 | Commercial Courts Act provides for a general rule for payment of costs by the judgment debtor and sets out the basis of awarding costs.Indian courts may order security for costs from a plaintiff not resident in India, if it does not possess suÆcient immovable property, or assets in India to satisfy any decree that may be passed against him. In cases where the subject of the suit is immoveable property, courts will direct such plaintiffs, who do not possess suÆcient immoveable property in India, to furnish security for any anticipated costs on the defendant. The quantum of such anticipated costs and required security is left to the discretion of the courts. Where such security is directed to be furnished by a plaintiff, the suit may be dismissed if such security is not provided.The amendments made to the CPC by the Commercial Courts Act ensures that the commercial court has wide discretion to determine, whether costs are payable, by whom and what quantum. Certain points that may be kept in mind are:Costs shall mean ‘reasonable costs’, relating to fees and expenses of witnesses, legal fees and expenses, any other expenses incurred in connection therewith.Cost to follow event mechanism – “... t h e ge ne ra l r u l e i s t h at t h e unsuccessful party shall be ordered to pay the costs of the successful party. |
161 | Indian courts may order security for costs from a plaintiff not resident in India, if it does not possess suÆcient immovable property, or assets in India to satisfy any decree that may be passed against him. In cases where the subject of the suit is immoveable property, courts will direct such plaintiffs, who do not possess suÆcient immoveable property in India, to furnish security for any anticipated costs on the defendant. The quantum of such anticipated costs and required security is left to the discretion of the courts. Where such security is directed to be furnished by a plaintiff, the suit may be dismissed if such security is not provided.The amendments made to the CPC by the Commercial Courts Act ensures that the commercial court has wide discretion to determine, whether costs are payable, by whom and what quantum. Certain points that may be kept in mind are:Costs shall mean ‘reasonable costs’, relating to fees and expenses of witnesses, legal fees and expenses, any other expenses incurred in connection therewith.Cost to follow event mechanism – “... t h e ge ne ra l r u l e i s t h at t h e unsuccessful party shall be ordered to pay the costs of the successful party.Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing”. |
162 | The amendments made to the CPC by the Commercial Courts Act ensures that the commercial court has wide discretion to determine, whether costs are payable, by whom and what quantum. Certain points that may be kept in mind are:Costs shall mean ‘reasonable costs’, relating to fees and expenses of witnesses, legal fees and expenses, any other expenses incurred in connection therewith.Cost to follow event mechanism – “... t h e ge ne ra l r u l e i s t h at t h e unsuccessful party shall be ordered to pay the costs of the successful party.Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing”.Var ious consid erations while granting costs, including, conduct of par t ies, whether a par ty has succeeded; whether a frivolous counter-claim has been made leading to delay; whether a reasonable offer t o s e t t l e i s m a d e , w h i c h i s unreasonably refused. |
163 | Costs shall mean ‘reasonable costs’, relating to fees and expenses of witnesses, legal fees and expenses, any other expenses incurred in connection therewith.Cost to follow event mechanism – “... t h e ge ne ra l r u l e i s t h at t h e unsuccessful party shall be ordered to pay the costs of the successful party.Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing”.Var ious consid erations while granting costs, including, conduct of par t ies, whether a par ty has succeeded; whether a frivolous counter-claim has been made leading to delay; whether a reasonable offer t o s e t t l e i s m a d e , w h i c h i s unreasonably refused.Courts are now also beginning to impose costs for filing of frivolous proceedings. For instance, in Vijay Karia v. Prysmian Cavi E Sistemi SRL,9 the appellants applied to the Supreme Court for special leave to appeal (under Article 136 of the Constitution of India), against the Bombay High Court’s order to enforce a foreign award. The Apex Court passed this order by observing that the Appellants were “indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud flung would stick”, and given t h a t t h e C o u r t ’ s t i m e w a s unnecessarily taken up, imposed exemplary costs of INR 50 lakhs on the appellants. |
164 | Cost to follow event mechanism – “... t h e ge ne ra l r u l e i s t h at t h e unsuccessful party shall be ordered to pay the costs of the successful party.Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing”.Var ious consid erations while granting costs, including, conduct of par t ies, whether a par ty has succeeded; whether a frivolous counter-claim has been made leading to delay; whether a reasonable offer t o s e t t l e i s m a d e , w h i c h i s unreasonably refused.Courts are now also beginning to impose costs for filing of frivolous proceedings. For instance, in Vijay Karia v. Prysmian Cavi E Sistemi SRL,9 the appellants applied to the Supreme Court for special leave to appeal (under Article 136 of the Constitution of India), against the Bombay High Court’s order to enforce a foreign award. The Apex Court passed this order by observing that the Appellants were “indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud flung would stick”, and given t h a t t h e C o u r t ’ s t i m e w a s unnecessarily taken up, imposed exemplary costs of INR 50 lakhs on the appellants. |
165 | Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing”.Var ious consid erations while granting costs, including, conduct of par t ies, whether a par ty has succeeded; whether a frivolous counter-claim has been made leading to delay; whether a reasonable offer t o s e t t l e i s m a d e , w h i c h i s unreasonably refused.Courts are now also beginning to impose costs for filing of frivolous proceedings. For instance, in Vijay Karia v. Prysmian Cavi E Sistemi SRL,9 the appellants applied to the Supreme Court for special leave to appeal (under Article 136 of the Constitution of India), against the Bombay High Court’s order to enforce a foreign award. The Apex Court passed this order by observing that the Appellants were “indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud flung would stick”, and given t h a t t h e C o u r t ’ s t i m e w a s unnecessarily taken up, imposed exemplary costs of INR 50 lakhs on the appellants. |
166 | Var ious consid erations while granting costs, including, conduct of par t ies, whether a par ty has succeeded; whether a frivolous counter-claim has been made leading to delay; whether a reasonable offer t o s e t t l e i s m a d e , w h i c h i s unreasonably refused.Courts are now also beginning to impose costs for filing of frivolous proceedings. For instance, in Vijay Karia v. Prysmian Cavi E Sistemi SRL,9 the appellants applied to the Supreme Court for special leave to appeal (under Article 136 of the Constitution of India), against the Bombay High Court’s order to enforce a foreign award. The Apex Court passed this order by observing that the Appellants were “indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud flung would stick”, and given t h a t t h e C o u r t ’ s t i m e w a s unnecessarily taken up, imposed exemplary costs of INR 50 lakhs on the appellants. |
167 | Courts are now also beginning to impose costs for filing of frivolous proceedings. For instance, in Vijay Karia v. Prysmian Cavi E Sistemi SRL,9 the appellants applied to the Supreme Court for special leave to appeal (under Article 136 of the Constitution of India), against the Bombay High Court’s order to enforce a foreign award. The Apex Court passed this order by observing that the Appellants were “indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud flung would stick”, and given t h a t t h e C o u r t ’ s t i m e w a s unnecessarily taken up, imposed exemplary costs of INR 50 lakhs on the appellants.9 Vijay Karia v. Prysmian Cavi E Sistemi SRL (2020) 11 SCC 1.34.Third Party Funding |
168 | Third Party FundingIn its purest form, the third party funding of a dispute is an arrangement between a funder and a litigant in which the funder ‘funds’ or provides monetary support to a litigant for pursuing and / or enforcing a claim, in exchange for a share in any ensuing award or settlement. The funding provided is ‘non-recourse’ and the funder is repaid the funded amount ( its investment) along with its profit, only upon a successful outcome of the action, and not otherwise. The investment or the asset is the litigant’s claim or award. |
169 | Third Party FundingIn its purest form, the third party funding of a dispute is an arrangement between a funder and a litigant in which the funder ‘funds’ or provides monetary support to a litigant for pursuing and / or enforcing a claim, in exchange for a share in any ensuing award or settlement. The funding provided is ‘non-recourse’ and the funder is repaid the funded amount ( its investment) along with its profit, only upon a successful outcome of the action, and not otherwise. The investment or the asset is the litigant’s claim or award.While there is no express legislation or regulation around litigation financing (as it is also known) in India , there have been several decisions by superior courts which endorse the view that third party funding of disputes is not barred under Indian law.10 However, although the principles of maintenance and champerty are not applicable in India, agreements which are found to be extortionate and unconscionable, for instance completely one-sided and usurious – say a majority share in the recoveries made, may be treated as being contrary to public policy.11 |
170 | In its purest form, the third party funding of a dispute is an arrangement between a funder and a litigant in which the funder ‘funds’ or provides monetary support to a litigant for pursuing and / or enforcing a claim, in exchange for a share in any ensuing award or settlement. The funding provided is ‘non-recourse’ and the funder is repaid the funded amount ( its investment) along with its profit, only upon a successful outcome of the action, and not otherwise. The investment or the asset is the litigant’s claim or award.While there is no express legislation or regulation around litigation financing (as it is also known) in India , there have been several decisions by superior courts which endorse the view that third party funding of disputes is not barred under Indian law.10 However, although the principles of maintenance and champerty are not applicable in India, agreements which are found to be extortionate and unconscionable, for instance completely one-sided and usurious – say a majority share in the recoveries made, may be treated as being contrary to public policy.11The CPC, which governs the procedure of civil actions in courts, was amended in the states of Maharashtra and Madhya Pradesh and Gujarat, so as to empower a court to implead a third-party financier in a suit as a plaintiff (in certain |
171 | In its purest form, the third party funding of a dispute is an arrangement between a funder and a litigant in which the funder ‘funds’ or provides monetary support to a litigant for pursuing and / or enforcing a claim, in exchange for a share in any ensuing award or settlement. The funding provided is ‘non-recourse’ and the funder is repaid the funded amount ( its investment) along with its profit, only upon a successful outcome of the action, and not otherwise. The investment or the asset is the litigant’s claim or award.While there is no express legislation or regulation around litigation financing (as it is also known) in India , there have been several decisions by superior courts which endorse the view that third party funding of disputes is not barred under Indian law.10 However, although the principles of maintenance and champerty are not applicable in India, agreements which are found to be extortionate and unconscionable, for instance completely one-sided and usurious – say a majority share in the recoveries made, may be treated as being contrary to public policy.11The CPC, which governs the procedure of civil actions in courts, was amended in the states of Maharashtra and Madhya Pradesh and Gujarat, so as to empower a court to implead a third-party financier in a suit as a plaintiff (in certaincircumstances). The financier may be required to give security for the payment of all costs incurred and likely to be incurred by any defendant. This amendment, made more than two decades ago, carries the implicit assumption that a plaintiff has been funded in its civil litigation (and that therefore, litigation financing, is permitted). |
172 | In its purest form, the third party funding of a dispute is an arrangement between a funder and a litigant in which the funder ‘funds’ or provides monetary support to a litigant for pursuing and / or enforcing a claim, in exchange for a share in any ensuing award or settlement. The funding provided is ‘non-recourse’ and the funder is repaid the funded amount ( its investment) along with its profit, only upon a successful outcome of the action, and not otherwise. The investment or the asset is the litigant’s claim or award.While there is no express legislation or regulation around litigation financing (as it is also known) in India , there have been several decisions by superior courts which endorse the view that third party funding of disputes is not barred under Indian law.10 However, although the principles of maintenance and champerty are not applicable in India, agreements which are found to be extortionate and unconscionable, for instance completely one-sided and usurious – say a majority share in the recoveries made, may be treated as being contrary to public policy.11The CPC, which governs the procedure of civil actions in courts, was amended in the states of Maharashtra and Madhya Pradesh and Gujarat, so as to empower a court to implead a third-party financier in a suit as a plaintiff (in certaincircumstances). The financier may be required to give security for the payment of all costs incurred and likely to be incurred by any defendant. This amendment, made more than two decades ago, carries the implicit assumption that a plaintiff has been funded in its civil litigation (and that therefore, litigation financing, is permitted).The Arbitration Act, as amended in 2015, also contains an implied recognition that there may be cases funded by a party not otherwise concerned with the dispute. A potential arbitrator is required to disclose any circumstances, which are likely to give rise to justifiable doubts as to his independence or impartiality. |
173 | While there is no express legislation or regulation around litigation financing (as it is also known) in India , there have been several decisions by superior courts which endorse the view that third party funding of disputes is not barred under Indian law.10 However, although the principles of maintenance and champerty are not applicable in India, agreements which are found to be extortionate and unconscionable, for instance completely one-sided and usurious – say a majority share in the recoveries made, may be treated as being contrary to public policy.11The CPC, which governs the procedure of civil actions in courts, was amended in the states of Maharashtra and Madhya Pradesh and Gujarat, so as to empower a court to implead a third-party financier in a suit as a plaintiff (in certaincircumstances). The financier may be required to give security for the payment of all costs incurred and likely to be incurred by any defendant. This amendment, made more than two decades ago, carries the implicit assumption that a plaintiff has been funded in its civil litigation (and that therefore, litigation financing, is permitted).The Arbitration Act, as amended in 2015, also contains an implied recognition that there may be cases funded by a party not otherwise concerned with the dispute. A potential arbitrator is required to disclose any circumstances, which are likely to give rise to justifiable doubts as to his independence or impartiality.In its landmark decision, in Bar Council of India v. A K Balaji & Ors. (in relation to foreign lawyers being permitted to |
174 | The CPC, which governs the procedure of civil actions in courts, was amended in the states of Maharashtra and Madhya Pradesh and Gujarat, so as to empower a court to implead a third-party financier in a suit as a plaintiff (in certaincircumstances). The financier may be required to give security for the payment of all costs incurred and likely to be incurred by any defendant. This amendment, made more than two decades ago, carries the implicit assumption that a plaintiff has been funded in its civil litigation (and that therefore, litigation financing, is permitted).The Arbitration Act, as amended in 2015, also contains an implied recognition that there may be cases funded by a party not otherwise concerned with the dispute. A potential arbitrator is required to disclose any circumstances, which are likely to give rise to justifiable doubts as to his independence or impartiality.In its landmark decision, in Bar Council of India v. A K Balaji & Ors. (in relation to foreign lawyers being permitted to |
175 | circumstances). The financier may be required to give security for the payment of all costs incurred and likely to be incurred by any defendant. This amendment, made more than two decades ago, carries the implicit assumption that a plaintiff has been funded in its civil litigation (and that therefore, litigation financing, is permitted).The Arbitration Act, as amended in 2015, also contains an implied recognition that there may be cases funded by a party not otherwise concerned with the dispute. A potential arbitrator is required to disclose any circumstances, which are likely to give rise to justifiable doubts as to his independence or impartiality.In its landmark decision, in Bar Council of India v. A K Balaji & Ors. (in relation to foreign lawyers being permitted to10 Ram Coomar Coondoo v. Chunder Cato Mookerjee, [1876] 4 IA (PC) 23, and Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379. |
176 | 10 Ram Coomar Coondoo v. Chunder Cato Mookerjee, [1876] 4 IA (PC) 23, and Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379.11 Ram Coomar Coondoo, [1876] 4 IA (PC) 23. See also G, A Senior Advocate, (1955) 1 SCR 490, Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 SCC 67, Nuthaki Venkataswami v. Katta Nagi Reddy, AIR 1962 AP 457.35..practice in India), the Supreme Court of India, observed (as obiter) that that third- party funding was permissible in India, stating. “ There appears to be no restriction on third parties (non-lawyers) funding the litigation and getting repaid after the outcome of the litigation.” 12As noted in Bar Council of India, Indian lawyers cannot take up cases on a contingency or success fee basis, inasmuch as the Bar Council of India Rules, 1961 explicitly prohibit Indian lawyers from acting in cases where they have any financial interest.13Binding Effect of Judgments |
177 | Binding Effect of JudgmentsA decision of the Supreme Court and decisions of the Privy Council, which do not conflict with any decision of the Supreme Court, rendered prior to 1950 ( w h e n t h e S u p r e m e C o u r t w a s established), are binding on all High Courts, lower courts and tribunals in India. Decisions of a High Court are binding within that State; a decision of the High Court of one State is only persuasive in other States. The decision of larger benches of the Supreme Court would be binding on smaller benches (e.g.A decision rendered by a three judge bench would be binding on a proceeding before a two judge bench). This principle of judicial discipline also applies to High Courts.The CPC recognises the principle of res judicata and a final decision on any matter by a competent court is binding on the parties to the litigation and persons claiming under, or through the parties. The same issue cannot be further litigated in subsequent proceedings. |
178 | The CPC recognises the principle of res judicata and a final decision on any matter by a competent court is binding on the parties to the litigation and persons claiming under, or through the parties. The same issue cannot be further litigated in subsequent proceedings.Decisions of Foreign CourtsRulings of foreign courts are of persuasive value and not binding on Indian courts. Decisions of courts of Commonwealth Countries (most often, the UK), are often cited before High Courts and the Supreme Court in the absence of any binding decision of Indiancourts. Decisions of US courts, in constitutional matters, administrative principles, antitrust matters, and intellectual property or technology matters are also occasionally cited for persuasive value.12 Bar Council of India v. A K Balaji & Ors. (2018) 5 SCC 379 at Paragraph 35.13 See Rule 10, Rules on Professional Standards, available at http://www.barcouncilofindia.org/about/professional-standards/rules- on-professional-standards/36. |
179 | Enforcement of Judgments/Decrees and OrdersA judgment or decree may be enforced in execution proceedings.14 Money decrees are executed by attachment and sale of the judgement debtor’s properties - movable and immovable. Certain properties are immune from execution (e.g. personal ornaments which cannot be parted with by any woman by virtue of religious usage / apparel, tools of artisans, books of account, stipends and gratuities received from a government servant, provident fund, etc.). In exceptional circumstances, Indian courts will allow money decrees to be executed by the arrest and detention in civil prison of the judgement debtor.The court may require the judgement debtor to be examined on oath to ascertain the assets available for execution and may, if required, appoint a receiver over such assets pending execution. |
180 | A judgment or decree may be enforced in execution proceedings.14 Money decrees are executed by attachment and sale of the judgement debtor’s properties - movable and immovable. Certain properties are immune from execution (e.g. personal ornaments which cannot be parted with by any woman by virtue of religious usage / apparel, tools of artisans, books of account, stipends and gratuities received from a government servant, provident fund, etc.). In exceptional circumstances, Indian courts will allow money decrees to be executed by the arrest and detention in civil prison of the judgement debtor.The court may require the judgement debtor to be examined on oath to ascertain the assets available for execution and may, if required, appoint a receiver over such assets pending execution.Under the Contempt of Courts Act, 1971, wilful disobedience of a court order amounts to ‘civil contempt’ and is punishable with a fine of up to INR 2000, or with simple imprisonment of up to six months, or both. |
181 | A judgment or decree may be enforced in execution proceedings.14 Money decrees are executed by attachment and sale of the judgement debtor’s properties - movable and immovable. Certain properties are immune from execution (e.g. personal ornaments which cannot be parted with by any woman by virtue of religious usage / apparel, tools of artisans, books of account, stipends and gratuities received from a government servant, provident fund, etc.). In exceptional circumstances, Indian courts will allow money decrees to be executed by the arrest and detention in civil prison of the judgement debtor.The court may require the judgement debtor to be examined on oath to ascertain the assets available for execution and may, if required, appoint a receiver over such assets pending execution.Under the Contempt of Courts Act, 1971, wilful disobedience of a court order amounts to ‘civil contempt’ and is punishable with a fine of up to INR 2000, or with simple imprisonment of up to six months, or both. |
182 | A judgment or decree may be enforced in execution proceedings.14 Money decrees are executed by attachment and sale of the judgement debtor’s properties - movable and immovable. Certain properties are immune from execution (e.g. personal ornaments which cannot be parted with by any woman by virtue of religious usage / apparel, tools of artisans, books of account, stipends and gratuities received from a government servant, provident fund, etc.). In exceptional circumstances, Indian courts will allow money decrees to be executed by the arrest and detention in civil prison of the judgement debtor.The court may require the judgement debtor to be examined on oath to ascertain the assets available for execution and may, if required, appoint a receiver over such assets pending execution.Under the Contempt of Courts Act, 1971, wilful disobedience of a court order amounts to ‘civil contempt’ and is punishable with a fine of up to INR 2000, or with simple imprisonment of up to six months, or both. |
183 | The court may require the judgement debtor to be examined on oath to ascertain the assets available for execution and may, if required, appoint a receiver over such assets pending execution.Under the Contempt of Courts Act, 1971, wilful disobedience of a court order amounts to ‘civil contempt’ and is punishable with a fine of up to INR 2000, or with simple imprisonment of up to six months, or both.14 The procedure for execution of decrees is set out in the End Note.37..Enforcement of Foreign JudgmentsThe Government of India has notified certain countries as reciprocatingdebtor entering appearance or where no opportunity to lead evidence isterritories15and subject to certaingiven), or is founded on an incorrect |
184 | territories15and subject to certaingiven), or is founded on an incorrectrestrictions, a final judgment of a court of a reciprocating territory may be enforced in India between the parties, as a judgment of an Indian c o u r t b y f i l in g a n e x e c u t io n application. Where the judgment is i s s u e d b y a c o u r t o f a n o n - reciprocating territory, it may be enforced by instituting a suit on such judgment. A foreign judgment would be enforceable except where it has not been pronounced by a court of competent jurisdiction, or is not on merits of the case (for example, a default judgment or a summary judgment without the judgment |
185 | and subject to certaingiven), or is founded on an incorrectrestrictions, a final judgment of a court of a reciprocating territory may be enforced in India between the parties, as a judgment of an Indian c o u r t b y f i l in g a n e x e c u t io n application. Where the judgment is i s s u e d b y a c o u r t o f a n o n - reciprocating territory, it may be enforced by instituting a suit on such judgment. A foreign judgment would be enforceable except where it has not been pronounced by a court of competent jurisdiction, or is not on merits of the case (for example, a default judgment or a summary judgment without the judgmentview of international law, or a refusal to recognise Indian law in cases in which such law is applicable, or was obtained in proceedings opposed to natural justice / obtained by fraud or it sustains a claim which is founded on a breach of any law in force in India. Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court. |
186 | given), or is founded on an incorrectrestrictions, a final judgment of a court of a reciprocating territory may be enforced in India between the parties, as a judgment of an Indian c o u r t b y f i l in g a n e x e c u t io n application. Where the judgment is i s s u e d b y a c o u r t o f a n o n - reciprocating territory, it may be enforced by instituting a suit on such judgment. A foreign judgment would be enforceable except where it has not been pronounced by a court of competent jurisdiction, or is not on merits of the case (for example, a default judgment or a summary judgment without the judgmentview of international law, or a refusal to recognise Indian law in cases in which such law is applicable, or was obtained in proceedings opposed to natural justice / obtained by fraud or it sustains a claim which is founded on a breach of any law in force in India. Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court.There is no provision under Indian law for enforcement of interim orders of a foreign court that do not conclusively decide an issue. |
187 | restrictions, a final judgment of a court of a reciprocating territory may be enforced in India between the parties, as a judgment of an Indian c o u r t b y f i l in g a n e x e c u t io n application. Where the judgment is i s s u e d b y a c o u r t o f a n o n - reciprocating territory, it may be enforced by instituting a suit on such judgment. A foreign judgment would be enforceable except where it has not been pronounced by a court of competent jurisdiction, or is not on merits of the case (for example, a default judgment or a summary judgment without the judgmentview of international law, or a refusal to recognise Indian law in cases in which such law is applicable, or was obtained in proceedings opposed to natural justice / obtained by fraud or it sustains a claim which is founded on a breach of any law in force in India. Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court.There is no provision under Indian law for enforcement of interim orders of a foreign court that do not conclusively decide an issue. |
188 | restrictions, a final judgment of a court of a reciprocating territory may be enforced in India between the parties, as a judgment of an Indian c o u r t b y f i l in g a n e x e c u t io n application. Where the judgment is i s s u e d b y a c o u r t o f a n o n - reciprocating territory, it may be enforced by instituting a suit on such judgment. A foreign judgment would be enforceable except where it has not been pronounced by a court of competent jurisdiction, or is not on merits of the case (for example, a default judgment or a summary judgment without the judgmentview of international law, or a refusal to recognise Indian law in cases in which such law is applicable, or was obtained in proceedings opposed to natural justice / obtained by fraud or it sustains a claim which is founded on a breach of any law in force in India. Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court.There is no provision under Indian law for enforcement of interim orders of a foreign court that do not conclusively decide an issue. |
189 | view of international law, or a refusal to recognise Indian law in cases in which such law is applicable, or was obtained in proceedings opposed to natural justice / obtained by fraud or it sustains a claim which is founded on a breach of any law in force in India. Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court.There is no provision under Indian law for enforcement of interim orders of a foreign court that do not conclusively decide an issue.38.Appeals from DecreesEvery original decree may be challenged in appeal, unless an appeal is precluded by statute. An appeal also lies against certain original orders specified in the CPC. The first appeal may include grounds of both questions of fact and/or law. Unless barred by statute, second appeals lie to the High Court only on substantial questions of law. |
190 | Appeals from DecreesEvery original decree may be challenged in appeal, unless an appeal is precluded by statute. An appeal also lies against certain original orders specified in the CPC. The first appeal may include grounds of both questions of fact and/or law. Unless barred by statute, second appeals lie to the High Court only on substantial questions of law.The judgment, or decree, or final order of a High Court may be appealed before the Supreme Court if the High Court concerned certifies that the matter involves a substantial question of law of general importance; or believes that the matter needs to be decided by the Supreme Court.Where there is no further right to appeal, the S up r eme Cour t may, on the application of an aggrieved party and in its sole discretion, grant special leave to appeal against any order of a court ortribunal, if it feels that the matter involves a substantial question of law. |
191 | Every original decree may be challenged in appeal, unless an appeal is precluded by statute. An appeal also lies against certain original orders specified in the CPC. The first appeal may include grounds of both questions of fact and/or law. Unless barred by statute, second appeals lie to the High Court only on substantial questions of law.The judgment, or decree, or final order of a High Court may be appealed before the Supreme Court if the High Court concerned certifies that the matter involves a substantial question of law of general importance; or believes that the matter needs to be decided by the Supreme Court.Where there is no further right to appeal, the S up r eme Cour t may, on the application of an aggrieved party and in its sole discretion, grant special leave to appeal against any order of a court ortribunal, if it feels that the matter involves a substantial question of law.Note that execution of a decree is not suspended while an appeal is pending. The appeal court may however, for reasons to be recorded, stay the impugned decree and / or execution thereof, pending the appeal. While doing so, it may also direct the judgement debtor to deposit the decretal amount in court pending hearing of the appeal. |
192 | The judgment, or decree, or final order of a High Court may be appealed before the Supreme Court if the High Court concerned certifies that the matter involves a substantial question of law of general importance; or believes that the matter needs to be decided by the Supreme Court.Where there is no further right to appeal, the S up r eme Cour t may, on the application of an aggrieved party and in its sole discretion, grant special leave to appeal against any order of a court ortribunal, if it feels that the matter involves a substantial question of law.Note that execution of a decree is not suspended while an appeal is pending. The appeal court may however, for reasons to be recorded, stay the impugned decree and / or execution thereof, pending the appeal. While doing so, it may also direct the judgement debtor to deposit the decretal amount in court pending hearing of the appeal.In so far as cases pertaining to C o m m e rc ia l D isp u te s u n d e r th e Commercial Courts Act are concerned, an appeal lies to the Commercial Appellate Division of the concerned High Court, which must be preferred within a period of 60 days from the date of the order / judgment. The Commercial Appellate Division must endeavour to dispose of appeals within a 6 month period. |
193 | Where there is no further right to appeal, the S up r eme Cour t may, on the application of an aggrieved party and in its sole discretion, grant special leave to appeal against any order of a court ortribunal, if it feels that the matter involves a substantial question of law.Note that execution of a decree is not suspended while an appeal is pending. The appeal court may however, for reasons to be recorded, stay the impugned decree and / or execution thereof, pending the appeal. While doing so, it may also direct the judgement debtor to deposit the decretal amount in court pending hearing of the appeal.In so far as cases pertaining to C o m m e rc ia l D isp u te s u n d e r th e Commercial Courts Act are concerned, an appeal lies to the Commercial Appellate Division of the concerned High Court, which must be preferred within a period of 60 days from the date of the order / judgment. The Commercial Appellate Division must endeavour to dispose of appeals within a 6 month period. |
194 | In so far as cases pertaining to C o m m e rc ia l D isp u te s u n d e r th e Commercial Courts Act are concerned, an appeal lies to the Commercial Appellate Division of the concerned High Court, which must be preferred within a period of 60 days from the date of the order / judgment. The Commercial Appellate Division must endeavour to dispose of appeals within a 6 month period.Appeals from OrdersOnly certain orders passed during the course of civil proceedings may be challenged by way of appeal. No appeal lies from an order not specified in the CPC. An unsuccessful litigant may however avail of the alternate remedies of civil revision, review and in limitedcircumstances, invocation of the High Court’s writ and supervisory jurisdiction. Where an order is appealed, the appellate court may, if suÆcient cause is made out, stay the impugned order pending disposal of the appeal.39..Revision |
195 | RevisionWhere there is no appeal provided for, the High Court has the power by revision to examine the record of any case decided by a subordinate court where there is a mistake, illegality, or material irregularity in the exercise of jurisdiction by such subordinate court. In the courseof revision, the High Court is empowered to pass any order it deems fit. A revision does not operate as a stay of any other suit, or proceeding then pending, unless the High Court specifically stays such other suit or proceeding.ReviewWhere either no appeal is provided for, or no appeal is preferred, the parties can apply to the court passing the decree to review its decision. A review lies when:The aggrieved party has discovered a new and important matter of evidence which, after the exercise of due diligence, was not within their knowledge, or could not have been produced by them at the time when the decree was passed; orThere is some mistake, or error apparent on the face of record; or |
196 | Where either no appeal is provided for, or no appeal is preferred, the parties can apply to the court passing the decree to review its decision. A review lies when:The aggrieved party has discovered a new and important matter of evidence which, after the exercise of due diligence, was not within their knowledge, or could not have been produced by them at the time when the decree was passed; orThere is some mistake, or error apparent on the face of record; orThere is any other suÆcient reason. The reason should be serious enough and it is only when the Court would have reason to believe that if re- examination or reconsideration of the decree is not done, there would be a miscar r iage of j ustice, the discretionary power of review would be exercised.Reference |
197 | ReferenceWhere, at the time of or prior to hearing a suit or an appeal in which the decree is not appealable, or at the time of execution of such decree, the court trying the suit or appeal or executing the decree, has a reasonable doubt as to any question of law, such court may either suo motu or on an application by any of the parties, refer the matter for the decision of the High Court. The court making such reference must draw up a statement of the facts of the case and the particular point of law on which there is adoubt, and refer such statement with its own opinion on the matter to the High Court for its decision.The court making the reference may either stay the proceedings or continue hearing the case, notwithstanding the reference, and proceed to pass a decree or an order contingent upon the High Court’s decision. However, such decree or order shall only be executed on the receipt of the High Court’s judgment on the referred matter.40.TRIBUNALS |
198 | TRIBUNALSCertain statutes exclude civil court jurisdiction, whilst rendering certain subject matter non-arbitrable16, and confer exclusive jurisdiction on statutorily constituted tribunals or quasi-judicial bodies (as a result these disputes may also not be arbitrable).16 See Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1..National Company Law Tribunal (“NCLT”) and National Company Law Appellate Tribunal (“NCLAT”)On and from June 1, 2016, the erstwhile Company Law Board (“CLB”) constituted under the Companies Act, 1956, was dissolved and the NCLT and NCLAT were constituted in its place under the Companies Act, 2013 (which replaced the Companies Act, 1956). |
199 | National Company Law Tribunal (“NCLT”) and National Company Law Appellate Tribunal (“NCLAT”)On and from June 1, 2016, the erstwhile Company Law Board (“CLB”) constituted under the Companies Act, 1956, was dissolved and the NCLT and NCLAT were constituted in its place under the Companies Act, 2013 (which replaced the Companies Act, 1956).The purpose of the NCLT and NCLAT is to avoid multiplicity of litigation before various forums (such as High Courts, the erstwhile Company Law Board (“CLB”), Board for Industrial & Financial Reconstruction (“BIFR”), Appellate Authority for Industrial & Financial Reconstruction (“AAIFR”), and instead to consolidate all corporate jurisdiction into one forum. So for instance, all matters relating to schemes of compromise, arrangement, amalgamation and r e c o n s t r u c t io n , in s o l v e n c y a n d bankruptcy proceedings, shareholders disputes relating to oppression, mismanagement etc., are now heard by the NCLT, with appeals being heard by the NCLAT (instead of a High Court). |
200 | National Company Law Tribunal (“NCLT”) and National Company Law Appellate Tribunal (“NCLAT”)On and from June 1, 2016, the erstwhile Company Law Board (“CLB”) constituted under the Companies Act, 1956, was dissolved and the NCLT and NCLAT were constituted in its place under the Companies Act, 2013 (which replaced the Companies Act, 1956).The purpose of the NCLT and NCLAT is to avoid multiplicity of litigation before various forums (such as High Courts, the erstwhile Company Law Board (“CLB”), Board for Industrial & Financial Reconstruction (“BIFR”), Appellate Authority for Industrial & Financial Reconstruction (“AAIFR”), and instead to consolidate all corporate jurisdiction into one forum. So for instance, all matters relating to schemes of compromise, arrangement, amalgamation and r e c o n s t r u c t io n , in s o l v e n c y a n d bankruptcy proceedings, shareholders disputes relating to oppression, mismanagement etc., are now heard by the NCLT, with appeals being heard by the NCLAT (instead of a High Court).The jurisdiction of the NCLT / NCLAT is exclusive and the Companies Act, 2013 mandates that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter |
Subsets and Splits