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 a suit, a defendant may challenge jurisdiction or make a counterclaim at the stage of the filing of a defence.

Jurisdiction may be challenged on the grounds of subject matter, territoriality or the pecuniary limits of a 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.

Defence structure

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 of 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.

Changing 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 a trial has commenced unless the court decides that the party could not have raised the matter at an earlier stage despite observing due diligence.

Sharing liability

How can a defendant establish the passing on or sharing of liability?

A 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.

Avoiding trial

How can a defendant avoid trial?

A defendant can avoid trial through various methods that include disputing the jurisdiction of the court, establishing that the plaint does not disclose a cause of action and making 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, a summons is issued to the defendant to appear and defend the claim. If the defendant fails to appear for the proceedings even after being given reasonable time, the court may pass an ex parte decree based on the pleadings submitted by the claimant. Even if the suit is heard ex parte, the plaintiff is required to establish that it is entitled to the relief claimed.

Claiming security

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.