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 upon 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?

A defendant can claim that a third party is a necessary party without whom the matter cannot be decided, or a third party can file an application seeking to implead the proceedings.

Consolidating 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, 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 claims or allegations in criminal proceedings are required to be proven beyond reasonable doubt, civil proceedings require a preponderance of evidence. Once the claims or allegations are submitted, the court decides the case based on the applicable law and specific facts of the case.

How does a court decide what judgments, remedies and orders it will issue?

Orders, remedies and judgments given by courts are based on the relief claimed by the claimant (subject to the applicable law), and the legal statutes (and amendments thereto) and judicial precedents applicable to the specific facts of the case.

Evidence

How is witness, documentary and expert evidence dealt with?

Indian courts consider documentary and expert evidence, and statements of witnesses, while deciding a case. In the context of the 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?

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 a 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 comply with a request of a requesting authority that a special method or procedure be followed unless this is incompatible with the internal law of the state or the impossibility of performance owing to internal practices and procedures, or there are 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 court.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Documentary evidence produced in a court is considered to be of greater value than oral evidence. It is tested on various factors, including whether a 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 by the court taking into consideration the facts and circumstances of the case.

Cross-examination is allowed at the discretion of the court.

Time frame

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 a significant amount of time before a judgment is pronounced (primarily due to various stages that include, inter alia, framing of issues, submission of evidence, chief examination and cross-examination). In addition, archaic procedural laws and frequent adjournments further contribute to the stretched timelines, although there are conscious efforts being made to change this situation.

However, certain legislation has been introduced to expedite the process of resolution. For instance, recent amendments to the Insolvency Code provide that the corporate insolvency process shall be completed within 330 days, while 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 relief. To claim 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 a party claiming such equitable relief has approached the court with a 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, that may prejudice or delay the trial, or that 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.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

Any form of testimony from a witness, the accused or an expert provided through video conferencing is accepted by most Indian courts.

Any person can access a case’s status, interim orders and judgments passed by the courts in India on the online portals maintained by the Supreme Court of India, most leading High Courts and a few district courts. However, case documents filed by plaintiffs and defendants in court are not accessible on the online portals. At present, the Indian courts have not adopted paperless trials.

Parallel proceedings

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 that 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 the two sets of proceedings, and any order issued in a civil matter cannot be used to one’s advantage before a 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. We have seen criminal complaints being filed to exert pressure on an 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.