Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

Upon receiving the summons by the court, the defendant – in addition to filing its written statement – may file counterclaims against the plaintiff with respect to the cause of action that the defendant has against the plaintiff, or raise an objection that the suit is bad for mis-joinder/non-joinder of necessary parties, who are also liable in whole, or in part, for the claim and without whom no effective decree in the suit can be passed. If the defendant considers that the court before which the plaintiff has filed the suit does not have jurisdiction to decide it, then the defendant should at the first instance raise its objection to that effect. Also, the defendant can make an application to the court for a summary judgment if it considers that the plaintiff has no real prospect of succeeding in the claim and there is no other compelling reason why the claim should not be disposed of before recording of oral evidence.

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 defence should be structured such that the facts challenging the maintainability of the suit should be detailed therein and should contain material facts on which the defendant relies for its defence. The defendant must specifically address each allegation of the plaintiff by way of either admission or denial. The defence in a commercial suit under the Commercial Courts Act 2015 (Commercial Courts Act) must be filed within 120 days of the date of service of summons upon the defendant, whereas in a commercial dispute not falling under the said Commercial Courts Act, the defendant is statutorily required to file the defence within 30 days (which is extendable to 90 days, with the permission of the court) of the date of service of summons upon the defendant. Furthermore, the defendant is duty bound to produce documents upon which it relies in support of its defence.

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

The defendant is permitted to amend its defence to bring out the true and correct facts necessary for determining the real question in controversy, and, generally, courts have adopted a liberal approach in allowing defendants to do so, to ensure that no material fact is left out while determining the matter in issue.

However, such amendments are not allowed after the commencement of trial, unless the party seeking the amendments satisfies the court that, despite due diligence, such a fact or amendments could not have been pursued earlier.

Sharing liability

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

The defendant may, at any stage of the proceedings, request the court to direct a person who is liable and necessary to answer the claims of the claimant and without which no effective decree in the suit can be passed, to join the proceedings.

Avoiding trial

How can a defendant avoid trial?

The defendant can avoid trial by various methods, including filing an application before the court for rejection of plaint on the basis of, inter alia: (1) lack of jurisdiction of the court; or (2) the suit being barred by any law; or (3) not disclosing a valid cause of action. The defendant may also file an application seeking deletion of its name from the array of parties. The defendant may also apply to the court for referring of the matter to mediation for an amicable settlement of disputes. Further, the parties to the suit may also enter into an out-of-court settlement and approach the court to dispose of the suit on the basis of that settlement.

Case of no defence

What happens in the case of a no-show or if no defence is offered?

If the defendant fails to file its defence or does not appear before the court despite proper service of the summons on the defendant and reasonable time given to it to do so, the court may hear the matter ex parte and adjudicate upon the same. In case the defendant, at a later stage during the pendency of the suit, assigns good cause for its non-appearance to the satisfaction of the court, the court may, subject to certain terms and conditions as it deems fit, allow the defendant to answer the claim of the plaintiff and take part in the proceedings.

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

A defendant has a right to claim from the court security for costs incurred and likely to be incurred by it. The court shall, however, grant the same only in cases where the plaintiffs are based outside India and do not possess any sufficient immovable property within India other than the property in suit. The forms of security for costs usually include deposits in courts, bank bonds or bank guarantees.