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Frequency of use
How common is commercial litigation as a method of resolving high-value, complex disputes?
Traditionally, arbitration used to be the preferred method for resolving disputes in India. However, on account of the significant time taken in resolving disputes through a court process, recently there have been significant positive changes in India to the dispute resolution process and, increasingly, commercial courts have become the preferred forum for resolving complex disputes.
Please describe the culture and ‘market’ for litigation. Do international parties regularly participate in disputes in the court system in your jurisdiction, or do the disputes typically tend to be regional?
India is one of the fastest growing economies of the world. Recent numbers suggest that foreign direct investment in India has been valued at approximately US$62 billion. As a result of this increase in foreign investment, courts in India are increasingly seeing foreign parties resolving disputes through the court process.
Having said that, the court system in India is still influenced by the system left by the British and, to some extent, it is plagued by archaic procedural laws. The government is conscious of this and has made it one of its stated objectives to rid the court systems of these obsolete laws.
While the culture and the market for litigation in India has traditionally been known to be slow and cumbersome, this is rapidly changing.
What is the legal framework governing commercial litigation? Is your jurisdiction subject to civil code or common law? What practical implications does this have?
Indian law is based on the common law system. While commercial litigation involves an interplay of various central and state legislations, the primary legislations governing commercial disputes include:
- the Indian Contract Act 1872 - governing contractual disputes;
- the Transfer of Property Act 1882 - the law dealing with immoveable property; and
- the Companies Act 2013 (formerly the Companies Act 1956) - the law relating to corporate entities.
In addition, like other common law countries, judicial pronouncements and precedents have played a significant role in the development and interpretation of different aspects of commercial law.
In terms of the legal framework, commercial disputes go to different courts based on the value and locus of the dispute. To keep up with the growing economy, various new legislations impacting commercial disputes have also been introduced.
Further, the government of India has recently introduced the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (the Commercial Courts Act) under which specific courts in each state have been exclusively designated for adjudicating high-value commercial disputes within specified timelines (the Commercial Courts Act is in the process of being amended through the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill, 2018 and recently an ordinance has been passed to amend certain provisions of the Commercial Courts Act).
Bringing a claim - initial considerations
Key issues to consider
What key issues should a party consider before bringing a claim?
Although the issues to be considered depend on the specific facts and circumstances of the case, the party intending to bring a claim should broadly consider:
- jurisdiction of the court of law;
- the nature of relief; and
- the limitation period with respect to the claim.
How is jurisdiction established?
Jurisdiction is established based on the value of the subject matter (ie, pecuniary jurisdiction) and the location of the defendant or cause of action (ie, territorial jurisdiction). If a suit can be filed at multiple courts and the parties confer exclusive jurisdiction on one of such courts, only the court having conferred jurisdiction as per the agreement between the parties will have jurisdiction. If an Indian party approaches courts in two separate jurisdictions, there are specific provisions under the law that bar the Indian party from initiating parallel proceedings on the same subject matter.
In the event that any order is passed by an Indian court against a foreign party, the same would have to be enforced against the foreign party in its local jurisdiction (based on the law of such jurisdiction). If the foreign party has assets in India, money decrees against such party may be executed by attachment and sale of assets of the foreign party in India.
There is no prohibition under the law preventing a party from approaching a foreign court while the proceedings are pending in a court on the same subject matter. Typically, a court would stay the proceedings only if there is a likelihood of contradictory judgments on the same subject matter.
Res judicata: is preclusion applicable, and if so how?
Courts are barred from trying any suit or issue that has been finally decided by a competent court in a former suit between the same parties or between parties under whom they or any of them claim.
Applicability of foreign laws
In what circumstances will the courts apply foreign laws to determine issues being litigated before them?
Indian courts would apply foreign law only if parties have agreed to be governed by foreign law under a contract. The relevant foreign law must be proved by the parties as a matter of fact.
What initial steps should a claimant consider to ensure that any eventual judgment is satisfied? Can a defendant take steps to make themselves ‘judgment proof’?
The steps that a claimant can take to ensure that an eventual judgment is satisfied revolve around preventing the defendant from fraudulently disposing off or creating third-party rights over its assets (by seeking interim relief to this effect).
When is it appropriate for a claimant to consider obtaining an order freezing a defendant’s assets? What are the preconditions and other considerations?
If there is an apprehension that a defendant may dispose its assets and frustrate the claim, the claimant can approach a competent court and seek interim relief. Indian courts typically grant a freezing order (known as temporary injunction) only if the claimant establishes:
- a prima facie case;
- a possibility of irreparable harm; and
- the balance of convenience.
Pre-action conduct requirements
Are there requirements for pre-action conduct and what are the consequences of non-compliance?
Based on the facts and circumstances of the case, there may be statutory requirements that are required to be met prior to initiation of legal proceedings. These statutory requirements include the sending of notice to the defendants, paying of court fees, etc. Non-compliance in relation to such statutory obligations could vitiate the legal proceedings.
Further, a claimant is required to ensure that all the relevant documents pertaining to the claim are disclosed with the court filings. Indian courts have the power to dismiss the claim on the ground that a claimant has not approached the court with clean hands.
Other interim relief
What other forms of interim relief can be sought?
Interim relief can also be claimed, inter alia, in the following forms:
- attachment of property;
- interim sale;
- detention of property, which is the subject matter of a suit;
- deposit of the claim amount with the court;
- appointment of receivers for the property;
- deposit of security in the form of immovable property; or
- a bank guarantee equivalent to the claim amount.
Alternative dispute resolution
Does the court require or expect parties to engage in ADR at the pre-action stage or later in the case? What are the consequences of failing to engage in ADR at these stages?
If the agreement between the parties requires them to engage in alternative dispute resolution (ADR) before initiating any legal proceedings, Indian courts will direct the parties to engage in ADR.
If it appears to a court during proceedings that elements of a settlement exist between the parties, the court may refer the dispute to, inter alia, mediation or judicial settlement, or adjourn the proceedings.
Claims against natural persons versus corporations
Are there different considerations for claims against natural persons as opposed to corporations?
An individual who owns and runs a business concern has unlimited liability in relation to his business. This implies that if a claim against the business concern cannot be satisfied from its assets, the claimant can attach the personal assets of such an individual for claims against the business concern.
On the other hand, the liability of a corporation is typically limited by its share capital. Therefore, if a claim is made against a corporation that it is not able to satisfy from its assets, the claimant cannot attach the personal assets of the shareholders of the corporation.
Are any of the considerations different for class actions, multi-party or group litigations?
Under the Code of Civil Procedure 1908, a class action suit (known as representative suit) can be filed if the persons filing the suit have the same interest (ie, commonality of interest) and obtain permission from the court. Such permission is only granted by the court after service of notice to all interested parties.
A public interest litigation may also be filed in the High Courts and the Supreme Court against the state or public authorities by public spirited individuals who represent a class of individuals for violation of their rights.
What restrictions are there on third parties funding the costs of the litigation or agreeing to pay adverse costs?
Third-party funding is prohibited for litigations in India.
How are claims launched? How are the written pleadings structured, and how long do they tend to be? What documents need to be appended to the pleading?
In a suit, claims can be made by filing a plaint before the civil courts. Written pleadings primarily contain facts, issues, claims and prayers. While the pleadings tend to be detailed, the length of the pleadings vary with the complexity of each case. All the documents relevant and necessary for establishing the contentions made are required to be appended to the pleadings.
Serving claims on foreign parties
How are claims served on foreign parties?
India is a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, dated 15 November 1965 (the Hague Convention) and therefore, summons on foreign defendants, who reside in territories that are signatories to the Hague Convention, can be made through the process prescribed under the Hague Convention.
Further, India has executed mutual legal assistance treaties with certain countries for service of summons, warrants and judicial process. If the defendant resides in one of such countries, a request can be made to the Ministry of Home Affairs for service of judicial documents. In this scenario, the process would be governed according to the provisions contained in the relevant mutual legal assistance treaty.
Key causes of action
What are the key causes of action that typically arise in commercial litigation?
Some of the key causes of action that may arise in commercial litigation are default in payment and default in complying with other contractual obligations.
Under what circumstances can amendments to claims be made?
If a party to the suit is able to convince the court that an amendment to the claim is necessary for deciding the dispute, then such amendment may be allowed by the court. However, no amendment in pleadings is allowed after the trial has commenced if the court finds that such amendment could have been made prior to commencement of the trial by observing due diligence.
What remedies are available to a claimant in your jurisdiction?
Under the Indian law, a claimant is entitled to remedies including, but not limited to:
- specific performance;
- recovery of debt or investment;
- injunction (including both permanent injunction and mandatory injunction); and
- enforcement of security.
What damages are recoverable? Are there any particular rules on damages that might make this jurisdiction more favourable than others?
Damages that are suffered from a foreseeable consequence of the action of defendant are recoverable. Further, courts also award liquidated damages if the parties have stipulated for such damages under their agreement.
There are no specific rules that make India a more favourable jurisdiction than others in relation to damages.
Responding to the claim
Early steps available
What steps are open to a defendant in the early part of a case?
In the initial stages of the suit, the defendant may challenge jurisdiction or make a counterclaim at the stage of filing of defence.
Jurisdiction may be challenged on the grounds of subject matter, territoriality or pecuniary limits of the court. A counterclaim may be made by the defendant for any right or cause of action available to the defendant against the claimant.
The defendant can file an application contending that a third party is liable for the claim and is, therefore, a necessary party for the proceedings. In addition, if a defendant can prove that only the third party so impleaded as a necessary party is liable for the claim, it can apply to the court to strike off its name as a party to the suit.
How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?
The structure of defence depends on the kind of proceedings initiated by the claimant. For instance, in a suit, typically, the defendant is required to specifically deal with all claims made by the claimant by giving a full rebuttal. The defendant is required to file the written statement within 30 days from the service of summons (extendable to 90 days with the permission of the court). All relevant documents required by the defendant to rebut the claimant’s case need to be appended to the defence.
Under what circumstances may a defendant change a defence at a later stage in the proceedings?
Courts have a discretionary power to allow a defendant to amend its pleadings if such amendment is necessary for determining the underlying dispute. However, no such amendment is allowed after the trial has commenced unless the court decides that the party could not have raised the matter at an earlier stage despite observing due diligence.
How can a defendant establish the passing on or sharing of liability?
The defendant can approach the court contending that a third party is a necessary party to the proceedings where, without such a party being impleaded, the matter cannot be decided. Unless a contrary intention appears from the agreement, the defendant may compel every other party that is a joint promisor to contribute equally in relation to the performance of the obligations under the underlying agreement.
How can a defendant avoid trial?
The defendant can avoid trial through various methods, which include:
- disputing the jurisdiction of the court;
- establishing that the plaint does not disclose a cause of action; and
- an out-of-court settlement.
Case of no defence
What happens in the case of a no-show or if no defence is offered?
When a suit is instituted, summons is issued to the defendant to appear and defend the claim. If the defendant fails to appear for the proceedings even after being given reasonable time, the court may pass an ex parte decree based on the pleadings submitted by the claimant. Even if the suit is heard ex parte, the plaintiff is required to establish that it is entitled to the relief claimed.
Can a defendant claim security for costs? If so, what form of security can be provided?
A defendant may claim security for all costs incurred or likely to be incurred.
Progressing the case
Typical procedural steps
What is the typical sequence of procedural steps in commercial litigation in this country?
The sequence of procedural steps to be taken depends upon the kind of proceedings initiated by the claimant. In a suit, once the appropriate jurisdiction is identified, the claimant initiates proceedings by filing pleadings in the relevant court. Post filing, the respondent is given a copy of such pleadings. The respondent is also given an opportunity to file a response to such claims. Thereafter, both the parties produce and file documents on which they rely, to substantiate their respective claims. Issues are finalised by the court and, after hearing both parties, a judgment is passed by the court. The court may also pass interim orders during the pendency of the case to provide timely relief to the aggrieved party.
Bringing in additional parties
Can additional parties be brought into a case after commencement?
The defendant can claim that a third party is a necessary party without whom the matter cannot be decided, or the third party can file an application seeking to implead the proceedings.
Can proceedings be consolidated or split?
Multiple proceedings may be heard together if the court believes that the proceedings arise from the same set of facts and relate to the resolution of similar issues.
On the other hand, the proceedings may be split if the court believes that there are multiple sets of facts, that the claims based on such facts are different and that the court would not be able to do justice to such distinct sets of facts.
Court decision making
How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?
While the claims or allegations in criminal proceedings are required to be proven beyond reasonable doubt, the civil proceedings require preponderance of evidence. Once the claims or allegations are submitted, the court decides the case based on applicable law and specific facts of the case.
How does a court decide what judgments, remedies and orders it will issue?
The orders, remedies and judgments given by courts are based on the relief claimed by the claimant (subject to applicable law), legal statutes (and amendments thereto) and judicial precedents applicable to the specific facts of the case.
How is witness, documentary and expert evidence dealt with?
The Indian courts consider documentary and expert evidence, and statements of witnesses, while deciding a case. In the context of weight attached to evidence, expert evidence typically has more value, followed by documentary evidence. Oral evidence is typically subject to cross-examination and, to that extent, its value can be diluted.
How does the court deal with large volumes of commercial or technical evidence?
In order to deal with large volumes of commercial and technical evidence, Indian courts typically appoint a commissioner to create a record of the evidence (often in the form of questions and answers). In such a situation, the court only considers the record of evidence submitted by the commissioner.
Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?
A letter of request or commission may be issued to a person resident in India if the foreign court is satisfied that the evidence of such person is necessary. Further, countries that are signatories to the Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, dated 18 March 1970, may also submit a letter of request to the judicial authority in the prescribed format for obtaining evidence in India. In this scenario, the judicial authority in India would apply its own law on the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with either the internal law of the state, the impossibility of performance owing to internal practices and procedures, or practical difficulties.
Based on the facts and circumstances of the case, a court in India may direct a foreign witness to appear and testify in the court.
How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?
The documentary evidence produced in a court is considered to be of greater value than oral evidence. It is tested on various factors including whether the document is forged and whether the intent of the parties is accurately captured in the document.
Similarly, witnesses are tested on the veracity of their statements, which are analysed with the court taking into consideration the facts and circumstances of the case.
Cross-examination is allowed at the discretion of the court.
How long do the proceedings typically last, and in what circumstances can they be expedited?
The duration depends on the kind of proceedings initiated by the claimant, along with the prescribed statutory timelines for such proceedings.
Typically, suits in India take significant time before a judgment is pronounced (primarily due to various stages, which include, inter alia, framing of issues, submission of evidence, chief examination and cross-examination). In addition, the archaic procedural laws and frequent adjournments further contribute to the stretched timelines, though there are conscious efforts being made to change this situation.
However, certain legislations have been recently introduced to expedite the process of resolution. For instance, the Insolvency and Bankruptcy Code 2016 (the Insolvency Code) has been introduced to complete the insolvency process within 180 days (extendable to 270 days). The Commercial Courts Act prescribes strict timelines for the conduct and disposal of commercial disputes in India.
A superior court may also direct a lower court to hear a case on an expedited basis when there has been an inordinate delay in the case.
Gaining an advantage
What other steps can a party take during proceedings to achieve tactical advantage in a case?
Indian courts have discretionary powers in relation to the grant of certain equitable reliefs. For claiming such relief, it is necessary that the claimant approaches the court with ‘clean hands’ (ie, acts in a fair and equitable manner and does not attempt to mislead the court). If it is proved before the court that the party claiming such equitable relief has approached the court by suppression of material facts, such as fraud, the court would not grant equitable relief to such a claimant.
Further, the court may strike out certain pleadings that are frivolous or vexatious, may prejudice or delay the trial, or otherwise constitute an abuse of the court process.
Impact of third-party funding
If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?
Not applicable - see question 15.
How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?
It is not uncommon for parties to initiate and be able to maintain simultaneous civil and criminal proceedings, which arise out of the same set of facts, before Indian courts. There is a difference in the burden of proof required to be discharged in both sets of proceedings and any order issued in a civil matter cannot be used to one’s advantage before the criminal court. Parties against whom simultaneous proceedings are initiated frequently raise defences of forum shopping and multiplicity of proceedings, however such proceedings can proceed independently and are decided on their own merits. In our experience, we have seen criminal complaints being filed to exert pressure on the opposing party in order to initiate negotiations with a view to arrive at an amicable settlement of civil disputes.
Criminal prosecutions can be initiated by private parties by instituting private complaints directly before the magistrate, without necessarily having to register a complaint before the police. Such cases mostly pertain to complaints that do not require an investigation and all relevant evidence (which is mostly documentary in nature) can be produced by the complainant him or herself.
How is the trial conducted for common types of commercial litigation? How long does the trial typically last?
The manner in which a trial is conducted depends on the kind of proceedings initiated by the claimant. For instance, adjudication of a suit in a civil court involves, inter alia, framing of issues, submission of evidence, chief examination, cross-examination and pronouncement of judgment. The court may also pass interim orders if immediate relief is to be provided to the claimant. The trial in high-value commercial disputes is conducted in accordance with the Commercial Courts Act.
The duration of the trial depends upon the complexity of the matter and the facts of the relevant case. The Commercial Courts Act expedites the trial since timelines have been provided for the progress of each stage, such as filing of written statement, inspection of documents and filing of appeals.
Use of juries
Are jury trials the norm, and can they be denied?
Jury trials have been abolished by the government of India.
How is confidentiality treated? Can all evidence be publicly accessed? How can sensitive commercial information be protected? Is public access granted to the courts?
The documents taken on record by the court are maintained by the registry department of the court. These documents are not typically accessible to the general public unless a specific application is made requesting access and explaining reasons why such access is required. Such an application is considered by the court and it grants access to the documents at its discretion.
To maintain confidentiality, a request to court can be made to keep certain documents sealed and confidential. While, typically, court hearings are held in public, the court may restrict public access to certain proceedings, depending on the sensitivity of the matter.
How is media interest dealt with? Is the media ever ordered not to report on certain information?
Any publication that prejudices, interferes or appears to interfere with the due course of any judicial proceeding and administration of justice in any manner is considered a contempt of court. However, innocent publication is a defence under the Contempt of Courts Act 1971.
Indian courts have the power to prohibit publication of information relating to any proceeding on the grounds of public policy, public order or security of the state. Based on the sensitivity of the matter, courts may impose restrictions on reporting of information relating to such a case.
How are monetary claims valued and proved?
In a commercial dispute, foreseeable damages may be provided for breach of an agreement. Typically, while assessing the monetary claims, court shall analyse and quantify losses suffered by one party and illegal gains received by the other. In case of liquidated damages, the compensation provided would be the same as stipulated under the agreement.
How does the court deal with costs? What is the typical structure and length of judgments in complex commercial cases, and are they publicly accessible?
Courts impose costs depending on the facts and circumstances of each case. Though Indian courts generally award nominal costs, there has been a recent trend to impose more substantial costs to curb vexatious and frivolous litigations.
Judgments rendered by the courts in commercial cases tend to be elaborate, and generally include facts, issues, arguments advanced by advocates of the parties, legal principles involved and reasons for the judgment. Reportable judgments are available on the website of the court that has given the judgment.
When can judgments be appealed? How many stages of appeal are there and how long do appeals tend to last?
All matters adjudicated by courts and tribunals of first instance in India are subject to appeal. The number of appeals varies based on the court or tribunal of the first instance adjudicating the case.
Appeals are generally on questions of law rather than a challenge to the facts of the case, and are required to be filed within the prescribed limitation period. The duration of the proceedings in an appeal depends on the kind of appeal preferred by the aggrieved party. For instance, under the Commercial Courts Act, the appellate division endeavours to dispose of an appeal in a period of six months from filing.
How enforceable internationally are judgments from the courts in your jurisdiction?
The government of India has notified certain territories as ‘reciprocating territories’ (for example, United Kingdom, Singapore, Malaysia, Hong Kong) that India has reciprocal relations with in relation to enforcement of judicial decrees. Courts in a reciprocating territory enforce decrees passed by Indian courts, as if they were pronounced by a competent court of the relevant reciprocating territory.
However, in other jurisdictions, enforceability of decrees passed by the Indian courts internationally depends on the law of the foreign country.
How do the courts in your jurisdiction support the process of enforcing foreign judgments?
Under Indian law, when a decree under which a sum of money is payable is passed by a superior court (ie, a court notified as such in a reciprocating territory), such a decree may be executed in India as if it were passed by an Indian court.
For countries that are not deemed reciprocating territories, a party has to file a fresh civil action (suit) on that foreign decree or on the original underlying cause of action, or both, in a domestic Indian court of competent jurisdiction.
Are there any particularly interesting features or tactical advantages of litigating in this country not addressed in any of the previous questions?
The courts in Mumbai and Delhi are adept in handling complex commercial litigation. The recent introduction of the Commercial Courts Act intends to facilitate the process of resolution of commercial disputes. The Insolvency Code has also been introduced, which provides for completion of the insolvency process within 180 days (extendable to 270 days).
In addition to the regular court process, special tribunals have been constituted for adjudication of specific disputes. Some prominent tribunals in relation to corporate and commercial litigation are as follows:
- the National Company Law Tribunal, which has been instituted for adjudication in relation to cases arising out of the Companies Act 2013 and the Insolvency Code;
- the Debts Recovery Tribunal, which deals with cases in relation to recovery of debts by secured and unsecured creditors as per the provisions of the Recovery of Debts due to Banks and Financial Institutions Act 1993 and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002; and
- the Securities Appellate Tribunal, which deals with the appeals against orders passed by the Securities and Exchange Board of India.
Are there any particular disadvantages of litigating in your jurisdiction, whether procedural or pragmatic?
Litigation in India suffers from delays due to the archaic procedural laws and overburdening of courts with large number of pending cases. Moreover, parties seek frequent adjournments, which further impedes the trial. However, conscious efforts are being made to address this situation.
Are there special considerations to be taken into account when defending a claim in your jurisdiction, that have not been addressed in the previous questions?
* The authors wish to thank Deepan Shah for his assistance in the preparation of this chapter.
Updates and trends
Updates and trends
Updates and trends
There has been a sharp increase in the proceedings initiated by creditors before the National Company Law Tribunal under the recently introduced Insolvency and Bankruptcy Code, 2016. With the increase in cases, the legal regime in this space is emerging and evolving rapidly. Consequently, the Indian market is becoming more results oriented.