Guide to Litigation in India

A Cyril Amarchand Mangaldas Thought Leadership Publication

Guide to Litigation in India
is published by Cyril Amarchand Mangaldas.

This guide has been updated till April, 2023.

This publication is not intended to be used as the basis for trading

in the shares of any company or for undertaking any other complex
or significant financial transaction without consulting appropriate
professional advisers. No part of this publication may be copied or
redistributed in any form without the prior written consent of
Cyril Amarchand Mangaldas.

Copyright © 2023 Cyril Amarchand Mangaldas.

All rights reserved.
 A Thought Leadership Publication
We now present this guide to enable readers to have
an overview of the systems and legal rules
and regulations that are essential for business
operations in India.
Guide to Litigation in India

TABLE OF CONTENTS

INTRODUCTION 06
A. LITIGATION IN CIVIL COURTS 08
1. India - A Common Law System 10
2. India’s Judicial System 12
3. Structure of Legal Profession 16
4. Appointment of Judges 18
5. Jurisdiction of Courts 18
6. Exclusive Jurisdiction Clauses 19
7. Governing Law Clauses 19
8. Court Fees 20
9. Period of Limitation 20
10. Civil Proceedings against the State 21
11. Civil Proceedings against a Foreign State 21
12. Suits by Foreign Entities and Foreign States 22
13. Institution of Civil Proceedings (Civil Courts) 22
14. Procedure 23
15. Civil Proceedings under the Commercial Courts Act 24
16. Pre-action conduct requirements 24
17. Institution of Civil Proceedings before Commercial Courts 25
18. Summary Suits in Civil Proceedings under Order 37 of the CPC 26
19. Summary Judgments under the Commercial Courts Act 27
20. Class Actions 27
21. Evidence 29
22. Interim Relief 29
23. Substantive / Final Relief 31
24. Specific Performance 32
25. Costs 33

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 Guide to Litigation in India

26. Third Party Funding 35

27. Binding E ect of Judgments 36
28. Decisions of Foreign Courts 36
29. Enforcement of Judgments / Decrees and Orders 37
30. Enforcement of Foreign Judgments 38
31. Appeals from Decrees 39
32. Appeals from Orders 39
33. Revision 40
34. Review 40
35. Reference 40

B. TRIBUNALS 42
1. National Company Law Tribunal (“NCLT”) and National Company Law 44
Appellate Tribunal (“NCLAT”)
2. Proceedings under the Insolvency and Bankruptcy Code, 2016 (“IBC”) 45
3. Debt Recovery Tribunal (“DRT”) and Debt Recovery Appellate 48
Tribunal (“DRAT”)
4. Securities & Exchange Board of India (“SEBI”) and Securities 49
Appellate Tribunal (“SAT”)
5. Competition Commission of India (“CCI”) 50
6. Telecom Regulatory Authority of India (“TRAI”) and 51
Telecom Disputes Settlement & Appellate Tribunal (“TDSAT”)
7. Real Estate Regulatory Authority (“RERA”) 51
8. Tax Tribunals 52
9. Consumer Dispute Forums/Commissions 52
10. Central Electricity Regulatory Commission and Appellate 53
Tribunal for Electricity
11. Labour Courts and Industrial Tribunals 53
12. National Green Tribunal 54

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INTRODUCTION

Since the turn of the century, India has Other notable reforms include the repeal
continued to witness an upward growth of the Companies Act, 1956 with the
trajectory. With the Indian Government’s introduction of the Companies Act, 2013
promise to improve the ease of doing (“Companies Act”). This also brought
business and its ‘Make in India’ or along with it a complete overhaul of the
‘AatmaNirbhar Bharat’ (for a self-reliant liquidation and bankruptcy process with
India) initiative, comes the obligation to the Insolvency and Bankruptcy Code, 2016
ensure that the rule of law is upheld and (the “IBC”), consolidating various
contracts are e ciently enforced. The legislations which deal with insolvency
Government recognizes the of individuals, partnerships and limited
correspondent obligation that the Indian liability partnerships into one single
legal regime and judiciary must facilitate legislation thereby making the process
and support the litigation process. This more streamlined and e cient.
includes a streamlined process for the Jurisdiction for matters under the IBC has
enforcement of contracts, as well as been exclusively conferred on the
domestic and foreign judgments, and National Company Law Tribunal (the
arbitral awards in a timely and e cient “NCLT”), thus relieving the burden on
manner. High Courts and providing redressal to
financial and operational creditors in
D e s p i t e I n d i a b e c o m i n g a h e a vy
relation to non-performing assets.
contributor to the global economy, it
su ers the drawback of an overburdened Recognising that the Government is the
judiciary, with an ever-increasing most prolific litigant before Indian
caseload. The consequent delay in the courts, in a bid to improve the judicial
judicial process has contributed to the landscape and make India an attractive
p e rc e p t i o n t h a t i t i s d i c u l t t o investment destination, the Government
successfully prosecute a claim or enforce introduced the Vivad se Vishwas II
a judgment or arbitral award in India. (Contractual Disputes) scheme for the
E orts to improve the process in the last settlement of disputes involving
few years include major amendments to government entities. It applies to
the Indian arbitration regime, the setting disputes where the claim was raised on or
up of commercial courts and divisions to before September 30, 2022 and includes
adjudicate ‘Commercial Disputes’ of cases at di erent stages of proceedings,
‘Specified Value’, and matters connected from the time of invocation of an
therewith, including incidental arbitration to pending challenges to
amendments to the Code of Civil arbitral awards. Depending on the stage
Procedure, 1908. of the dispute / legal proceeding, a

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 Guide to Litigation in India

percentage is ascribed for the settlement robust legal regime and familiarisation
of a claim made by private entities with the process can lessen such
against the government and / or unpredictability. These reforms and
government / public entities. It is hoped an overview of the dispute resolution
that the Vivad se Vishwas II scheme will process in India – with a focus on
help free up government funds which litigation is further discussed in
would otherwise likely be tied up for the relevant chapters of this Guide /
decades in litigation, whilst aiding Handbook, which we present to our
private companies / individuals in readers in the hope that this will give
recovery of awarded amounts, and easing them a reasonable understanding of the
the caseload in courts – a testament to process.
the Government’s intent once again, to
ensure an e cient determination of
disputes.
IMPORTANT NOTE: All information given
Building on the path of liberalisation, in this handbook has been compiled from
with the backing of the Government, in credible, reliable sources. Although
March 2023 the Bar Council of India reasonable care has been taken to
notified rules permitting the entry of ensure that the information in this
foreign lawyers in India, entitling them to handbook is true and accurate, such
practice in specified “non-litigious” areas information is provided as is, without any
once they are registered under the Rules.
warranty, express or implied, as to the
Foreign lawyers and firms can also
accuracy or completeness of any such
continue to practice on a fly in, fly out
information. Cyril Amarchand Mangaldas
basis as permitted earlier.
will not be liable for any losses incurred
These reforms go towards cementing by any person from any use of this
India’s position as a commercial hub, p u b l i ca t i o n o r i t s c o n t e n t s . T h i s
optimising it as a destination for handbook has been prepared for
investment, business and arbitration. informational purposes only and nothing
Underpinning these reforms therefore is contained in this handbook constitutes
the unceasing e ort to make access to legal or any other form of advice from
justice easier and reduce the concerns of Cyril Amarchand Mangaldas. Readers
foreign investors and trading partners. should consult their legal, tax and other
Doing business in a foreign country can advisors before making any investment
be fraught with uncertainties and or other decision with regard to any
unpredictable outcomes. The support of a business in India.

7 2023 © Cyril Amarchand Mangaldas

A. LITIGATION IN
CIVIL COURTS
Guide to Litigation in India

01 India – A Common Law System

India is primarily a common law 3 lists (i.e. Union, State and Concurrent
jurisdiction. There are certain personal Lists).
laws based on customary practice that
The Parliament, the apex legislative body,
are applicable to some religious
consists of 2 houses and is empowered to
communities. Indian law is largely similar
enact laws on subjects in the Union List.
to English common law in many aspects
The state legislatures are empowered to
because of the long period of British
enact laws on subjects in the State List.
colonial influence during the British Raj
period. Indeed, several legislations were Both the Parliament and the state
framed by the British based on their own legislatures may enact laws on subjects
laws, some of which continue to this day, mentioned in the Concurrent list but in
for example, contract law, penal laws, case of a conflict, the law enacted by the
evidence, general civil procedure etc. Parliament prevails. Laws enacted by the
Some laws that operate on personal / Parliament and the state legislatures are
familial relationships, are based on binding, as also, laws pronounced by the
custom or religion of individuals covered Supreme Court (by way of judicial
thereby, typically in relation to marriage pronouncements).
and succession. Laws enacted by the Parliament are
In India, the common law system, which is published in the Gazette of India,
based on the principle that it is unfair to whereas laws enacted by the state
treat similar facts di erently on di erent legislatures are published in their
occasions, earlier decided cases are respective state gazettes. The Parliament
treated as binding precedents on lower as well as the state legislatures are
courts and of persuasive value in courts empowered to enact legislation having
with the same or superior jurisdiction. retrospective e ect, apart from criminal
There are several pieces of legislation legislation. Laws are generally applicable
that were enacted pre-independence by prospectively, unless specifically
the Imperial Legislative Council, such as: mentioned otherwise.
the Indian Penal Code, 1860 (“IPC”), the
Indian court proceedings are adversarial,
Indian Contract Act 1872, the Evidence Act
i.e. where parties present their case
1872, etc.
before a judge who must remain
The Constitution of India, 1950 adopts a impartial and refrain from acting as an
quasi-federal structure. The 7th Schedule inquisitor (as he may in a civil law
allocates subjects between the jurisdiction). The court may, to e ectively
Parliament and the state legislatures into rule on an issue (on matters of both law

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and fact), put questions to a witness, or Civil courts in India are governed by the
direct parties to lead evidence on certain procedure set out in the Code of Civil
aspects. In the late 1960s, India abolished Procedure, 1908 (“CPC”). Criminal
the jury system for civil and criminal o ences are covered by the IPC, and
proceedings, except for matrimonial criminal courts are governed by the
d i s p u t e s r e l a t i n g t o t h e ‘ Pa r s i ’ procedure set out in the Code of Criminal
community. Procedure, 1973 (“CrPC”).

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02 India’s Judicial System

The Indian Constitution is jurisdiction over matters and

federal in form but quasi-federal disputes of a particular subject
in spirit - the Constitution is matter.
supreme and there is a division
The principal court of original
of power between the Union and
jurisdiction is the City Civil
States i.e. the Constitution
Court (in metropolitan areas)
provides for a union list, state
and the Court of Civil Judge,
list and a concurrent list. The
Senior Division (in non-
judiciary is wholly independent
metropolitan areas). There are
of the legislature and executive,
25 High Courts covering the 28
and historically, has been a very
States and 8 Union Territories
activist judiciary.
of India. The High Court is the
India's judicial system is broken court of appeal and has
up into three distinct streams, supervisory jurisdiction over all
i.e. criminal, civil cases and lower courts and tribunals in
other cases which may be the State / Union Territory over
referred to specific statutorily which it has territorial
constituted courts and tribunals jurisdiction. The High Courts of
depending on subject matter B o m b a y, D e l h i , C a l c u t t a ,
and the status concerned. Madras and Himachal Pradesh,
Jurisdiction of a court is also have original jurisdiction.
dependent on its territorial and The Supreme Court of India has
pecuniary limits and may also be overall superintendence over
circumscribed by subject matter. all High Courts and lower courts
Some courts or tribunals are and tribunals in India, and is the
conferred with exclusive final court of appeal.

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• Supreme Court: satisfied that they involve similar

questions of law. If it believes that
Under the Constitution of India, the
such questions are of substantial
role of the Supreme Court is that of a
general importance, the Supreme
federal court, guardian of the
Court may withdraw a case from the
Constitution and the highest / final
High Court or High Courts to entertain
court of appeal, having overall
and dispose of such case, itself.
supervisory jurisdiction over State
High Courts and all lower courts and The Supreme Court’s appellate
tribunals in India. The Supreme Court jurisdiction can be invoked in respect
is established under Article 124 of the of any judgment, decree, or final order
Constitution and has a sanctioned of a High Court (in both civil and
strength of 34 judges who can sit criminal cases). Invocation of its
singly or in benches of 2 or more appellate jurisdiction is on the basis
judges. Matters involving a of a certificate from the High Court
substantial question of law as to the concerned that the case involves a
interpretation of the Constitution are substantial question of law as to the
heard by larger benches comprising 5 interpretation of the Constitution, or
or more judges (up to even 13 judges). of general importance which needs to
In its original writ jurisdiction, the be decided by the Supreme Court. In
Supreme Court is empowered to criminal cases, an appeal lies to the
enforce fundamental rights Supreme Court if the High Court has
guaranteed under the Constitution by reversed an order of acquittal and
issuing directions, orders, or writs sentenced a person to death, or
(including writs in the nature of imprisonment for at least 10 years, or
habeas corpus, mandamus, certified that the case is fit for appeal
prohibition, quo warranto, and to the Supreme Court. The appellate
certiorari). It may also adjudicate jurisdiction of the Supreme Court can
upon disputes between the Union and also be invoked from the decisions of
one or more States, or a dispute, inter some tribunals, for instance, the
se, between two or more States, NCLAT and the SAT.
where the dispute involves any
In fit cases, on important issues of
question (whether of law, or of fact),
law, the Supreme Court may be
on which the existence, or extent of a
approached for special leave to
legal right depends.
appeal, against any judgment, or
The Supreme Court is also empowered order of any court in India (not
to transfer any civil or criminal cases including a court constituted by, or
from one High Court to another, if under any law relating to the Armed

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Forces), including in respect of one

against which there is no statutory
right of appeal.

• High Courts:

The High Court is the supreme judicial

authority at the State level and
generally the last court of regular
appeals. Judges in the High Court,
either sit singly, or in benches of two
or more judges. There are currently 25
High Courts in the country (the oldest
being the Calcutta High Court),
established under Article 214 of the
judgments passed by lower courts
Constitution of India.
and tribunals over which they
The Constitution confers on every exercise jurisdiction.
High Court the power of
In its writ jurisdiction, a High Court is
superintendence over all courts and
empowered to enforce fundamental
tribunals throughout the territories in
rights and for any other purpose
r e l a t i o n t o w h i c h i t e xe rc i s e s
guaranteed to each citizen of India
jurisdiction (except those constituted
under the Constitution and remedy
by any law relating to the armed
any violation thereof. For this
forces).
purpose, the High Court may issue
The High Courts of Bombay, Madras, directions, orders, or writs (including
Calcutta, Delhi and Himachal Pradesh of h a b e a s c o r p u s , m a n d a m u s ,
have original jurisdiction, i.e. a case prohibition, quo warranto and
may be instituted before them in the certiorari).
first instance. These Courts also have
In its appellate jurisdiction, a High
a pecuniary limit, below which
Court is the highest court of appeal in
they may not exercise original
a State and the final court of appeal
jurisdiction.1
(except in specific cases where the
The remaining High Courts have only Supreme Court has been statutorily
appellate jurisdiction, over orders and conferred with appellate jurisdiction).

1 As of April 2023, the pecuniary jurisdiction of these High Courts is for a claim above:
INR 10,000,000/- in the Bombay High Court
INR 1,000,000/- in the Calcutta High Court
INR 10,000,000/- in the Madras High Court
INR 20,000,000/- in the Delhi High Court
INR 10,000,000/- in the Himachal Pradesh High Court

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The High Cour t also exercises and the Judicial Magistrate (First and
testamentary and intestate Second class).
jurisdiction, for probates, challenging
a will, issuance of letters of • Small Causes Court:
administration and succession
The Small Causes Courts in India may
certificates etc. for administration of
be broadly classified as Presidency
the estate of a deceased person.
Small Causes Courts in Mumbai,
The High Courts in the coastal states Chennai and Kolkata enacted under
of Gujarat, Maharashtra, West Bengal, the Presidency Small Causes Courts
Andhra Pradesh, Telangana, Act, 1882 (“Presidency Act”) and
Karnataka, Kerala, Orissa and Tamil Provincial Small Causes Courts
Nadu exercise admiralty jurisdiction. enacted under the Provincial Small
This jurisdiction extends over any ship Cause Courts Act, 1887 (“Provincial
that is present in their territorial Act”). The Provincial Act governs
waters (irrespective of whether or not small causes courts in places other
she is a national of, or registered in than Mumbai, Chennai, and Kolkata.
India, regardless of residence, or
Each State has the power to amend
domicile of her owners). In India, an
the Provincial or Presidency Acts to fix
action in rem lies in a High Court
the pecuniary and territorial
against a foreign-owned ship, for a
jurisdiction of small causes courts to
cause of action arising from tort, or a
suit its own requirements. Broadly,
breach of obligation under a contract
these acts provide for small causes
for carriage of goods from a port in
courts to deal with matters within
India to a foreign port.
their pecuniary jurisdiction as fixed by
the aforementioned governing acts,
• District Courts:
as modified by the State. The idea as
In metropolitan areas, the principal the name suggests is for matters
court of original jurisdiction is the City which are of relatively small value to
Civil Court and the High Court of the be decided by these courts, though
relevant State is the court of appeal. the pecuniary jurisdiction of the small
In non-metropolitan areas, the Court causes courts, vary from State to
of Civil Judge, Senior and Junior State.
Divisions, is the principal court of
The small causes courts also have
original jurisdiction and the District
exclusive jurisdiction to adjudicate
Court is the court of appeal. The
proceedings under rent control laws,
principal court of criminal jurisdiction
municipality laws, election petitions,
in a State is the Sessions Court below
anti-corruption matters, debt relief
which lie the Chief Judicial Magistrate

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Guide to Litigation in India

laws, motor vehicles laws, motor stated intent to improve India’s

accident claims, payment of wages ability to enforce contracts. The
etc. as have been granted by various Commercial Courts Act envisaged the
state amendments. As a result of the setting up of special commercial
subject matter jurisdiction, in practice courts to adjudicate commercial
small causes courts also hear high disputes in a time bound manner.
value matters relating to matters Consequently, civil cases in relation
such as rent disputes which tend to be to commercial disputes and claims
hotly contested. above a certain specified value
(originally INR 10 million, but reduced
• Commercial Courts: in 2018 to INR 0.3 million), which
would have been otherwise
The Commercial Courts, Commercial
adjudicated by an ordinary court, now
Division and Commercial Appellate
fall under the jurisdiction of the
Division of High Courts Act, 2015
Commercial Court and the
which was amended in 2018 to be
Commercial Division of High Court,
called the Commercial Cour ts,
respectively. Appeals arising out of
C o m m e rc i a l A p p e l l a t e C o u r t s ,
such disputes lie before the
Commercial Division and Commercial
Commercial Appellate Division of the
Appellate Division of High Courts Act,
High Court.
2015 (“Commercial Courts Act”),
came into force on October 23, 2015 Pursuant to amendments made in
(c o i n c i d e n t a l l y, w i t h t h e 2 0 1 5 2018, commercial courts are being
amendments to the Arbitration & established at the district level even
Conciliation Act, 1996). Specialized in territories where the State High
commercial courts and divisions were Court exercises original jurisdiction
set up for expeditious resolution of (where the relevant High Court would
the growing number of commercial have a Commercial Division).
cases, pursuant to the Government’s

03 Structure of Legal Profession

The Bar is unified and qualified lawyers Court, an advocate, or law firm must be
enrolled with any State Bar Council can registered with the concerned State Bar
appear before any Indian court. However, Council.
in order to represent and appear for a
party in any legal proceeding before a An advocate of at least 10 years standing
District Court, High Court, or the Supreme may be designated a “Senior Advocate”

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 Guide to Litigation in India

by the Supreme Court or the High Court arbitration would lend itself to such
with which he is registered if, in the casual visits, the Apex Court noted that
opinion of the Supreme Court or that High foreign lawyers could fly in and fly out to
c o n d u c t a r b i t ra t i o n p r o c e e d i n g s ,
Court the advocate possesses expertise
however, they will be governed by the
and character befitting the status. Such a
code of conduct applicable to the legal
designated Senior Advocate plays a role profession in India, and the Bar Council or
quite similar to that of a Queen’s Counsel. Union of India are at liberty to frame
rules.
The distinction between ‘solicitors’ and
‘advocates’ was removed in 1976. Building on this judgment, on March 10,
Nevertheless, the Bombay Incorporated 2023 the Bar Council of India (BCI)
Law Society, under the aegis of the notified the Bar Council of India Rules for
Bombay High Court, conducts the Registration and Regulation of Foreign
qualification examination for solicitors. Lawyers and Foreign Law Firms in India,
Solicitors have the same right of 2022, regulating the entry of foreign
audience as advocates. lawyers and foreign law firms in India on
Under Indian law, specifically, the a reciprocal basis. Foreign lawyers or
Advocates Act, 1961, only qualified firms can continue to practice law on a
advocates enrolled with the Bar Council ‘fly in fly out’ basis to provide legal advice
of India are permitted to practice law in “regarding foreign law and on diverse
India. Insofar as foreign lawyers are international legal issues” and if: (i) the
concerned, given the rise in the number advice is procured by the client in a
of international commercial arbitrations foreign country; (ii) the foreign lawyer or
involving foreign parties, the Supreme firm does not maintain an o ce in India;
Court of India in Bar Council of India v. A K and (iii) the practice in India does not
Balaji & Ors. (2018) 5 SCC 379 held that cumulatively exceed 60 days in any
foreign lawyers are entitled to give legal period of 12 months.
advice on foreign law involving diverse A foreign lawyer or firm can practice law
international legal issues on ‘casual’ in India in non-litigious matters only,
visits to India. This was on the basis that subject to exceptions laid down in the
such casual visits would not amount to Rules. Foreign lawyers will be permitted
the ‘practice of law’, which would include to represent foreign parties in
appearances in courts, giving of opinions, international commercial arbitrations,
drafting of instruments and participation but not in domestic arbitrations or
in conferences involving legal discussion. litigations before any Indian court or
Recognising that international tribunal.

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04 Appointment of Judges

Only an Indian citizen may be appointed succession) for more than ten years, or
a s a m e m b e r o f t h e j u d i c i a r y. must, in the opinion of the President of
Appointments to the lower judiciary must India, be a distinguished jurist. The age of
qualify by clearing the Civil Services retirement of a High Court judge, is 62
(Judicial) Exam conducted by the Union years, while a Supreme Court judge is
Public Service Commission. A citizen, required to retire at the age of 65 years.
having held judicial o ce for at least 10 There have been proposals to increase
years, or an advocate, registered as an the retirement age, but these have not
advocate of a High Court (or of two or yet been put through.
more High Courts in succession) for more
than 10 years may be appointed as a
Judge of a High Court. To be appointed a
judge of the Supreme Court, the citizen
must have served as a judge of a High
Court (or of two or more High Courts in
succession) for more than five years, or
have practised as an advocate of a High
Court (or of two or more High Courts in

05 Jurisdiction of Courts

Jurisdiction of Indian courts is limited by the court is situated. The valuation of a

territory, pecuniary value of the claim / plainti ’s claim (and defendant’s
dispute and / or subject matter. A court counter-claim, if any), determines which
would have territorial jurisdiction over a court would have pecuniary jurisdiction
dispute if the defendant habitually over the case.
resides, carries on business, or works for
Subject matter also plays a part, and
gain within its territory, or, if the cause of
exclusive jurisdiction may be statutorily
action arose, or immoveable property
conferred upon certain courts or
which is the subject matter of the claim
tribunals, to the exclusion of regular civil
lies, within the territorial limits of such
courts and/or arbitral tribunals 2 ,
court.
depending on the type of claims or
The pecuniary jurisdiction of courts is dispute (as more particularly explained
determined by the relevant State in which below).

2 See Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1.

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06 Exclusive Jurisdiction Clauses

Indian courts recognize the contractual foreign courts, while the principle is
right of parties to stipulate exclusive recognised, Indian courts may refuse to
jurisdiction provisions in their contracts. give up jurisdiction on the grounds of
Most of the judicial pronouncements on forum non conveniens, balance of
jurisdiction clauses relate to exclusive convenience, the interests of justice and
jurisdiction of one Indian court over
others and these stipulations have been
uniformly enforced subject to the
exception that parties, by contract,
cannot confer jurisdiction upon a court
w h i c h w o u l d o rd i n a r i l y n o t h av e
jurisdiction under Indian law. This does
not apply to arbitration clauses, where
the seat of the arbitration, though not
otherwise having any connection to the
p a r t i e s o r s u b j e c t m a t t e r, w o u l d
nevertheless confer jurisdiction upon the
courts of the seat.

However, in relation to provisions

conferring exclusive jurisdiction on

07 Governing Law Clauses

Parties are free to choose a foreign law to Insofar as governing law is concerned in a
govern their relationship, where at least contract between Indian parties where
one party is a foreign party. In such cases, there is no foreign element, while there is
Indian courts will apply the law chosen by no specific case law on the issue, it is
the parties to such a contract, subject to possible that should the parties for some
the foreign law being pleaded and proved reason decide to subject the contract to
as a fact (including through expert foreign law, an argument may be taken
evidence, if required). If not so proved, it that such contracting out of Indian law
will be assumed that the legal position would be contrary to public policy.
under the foreign law is the same as that
existing under Indian law.

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08 Court Fees

Court fees are payable by a plainti at the 0.3 million), or may be ad valorem,
time of filing a suit, under the Court Fees without a cap, (for example, the Delhi
Act, 1870, although some States have High Court levies court fees on an ad
their respective State Acts and the court valorem basis depending on the value of
fees vary from State to State. The Court the claim). Court fees may also be paid for
fees may be capped at a maximum filing other applications or petitions,
amount (for example, Court fees in the which are at a capped fixed fee.
Bombay High Court are a maximum of INR

09 Period of Limitation

The Limitation Act, 1963, prescribes the before the expiry of the prescribed period
time limit within which an aggrieved of limitation, or where a party has
person can approach a court for redressal. wrongly (but bona fide), pursued an
The period of limitation is computed from action in a court which does not have
the date of accrual of the cause of action, jurisdiction.
or in the case of a continuing cause of
Courts do not have the power to extend
action, from each such day on which it
accrues. Limitation for civil actions and the period of limitation; a suit filed after
suits for which no period of limitation is its expiration is bound to be dismissed
prescribed is generally 3 years. Limitation even if limitation has not been taken up
for claims on tortuous liability is as a defence. A court may however, under
generally 1 year. Limitation for suits to certain limited circumstances, condone
recover possession of immovable delay in filing appeals.
property is 12 years. Limitation for In light of the spread of the Covid-19
execution of a decree is also 12 years. pandemic, the Supreme Court in exercise
Limitation for suits by, or on behalf of the of its powers under Article 142 of the
government is 30 years. Limitation for Constitution suspended the period of
filing an appeal varies between 30 days to limitation for all claims for nearly 24
90 days. months, thereby permitting such claims
Limitation may be extended under to be brought even after the strict period
certain circumstances, for instance, of limitation had lapsed, subject to
where there has been a part-payment or certain rules for the calculation of such
acknowledgment in writing of a debt limitation.

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10 Civil Proceedings against the State

The State is not immune and cannot claim opportunity has been given to the
immunity from civil proceedings, except defendant to show cause in respect of the
in respect of certain sovereign functions. relief prayed for.
Prior to initiating any suit in respect of an
Public sector undertakings (including
o cial act against the Government of
Government controlled, or owned
India, or any State, or a public o cer, at
corporations) are distinct from the
least two month’s advance written notice
Government and suits may be instituted
must be issued with the intention to file a
against such undertakings without prior
suit, with su cient details of the dispute
notice.
and claim. Where there is a need for
urgent relief, the suit may be instituted Specific statutory functionaries may be
without the full two months’ notice, with granted immunity from civil proceedings
the leave of the Court, but no relief shall in respect of o cial acts undertaken by
be granted unless a reasonable them.

11 Civil Proceedings against a Foreign State

Written consent of the Indian reference to such trade, or property.

Government is required before Consent may also be granted if the
instituting civil proceedings against a foreign state has, impliedly, or expressly
foreign state, which consent will be waived immunity. However, as an
withheld unless the foreign state has exception to this rule, consent of the
subjected itself to the jurisdiction of an Government is not required where a
Indian court. Such submission to tenant of immovable property sues a
jurisdiction may be by instituting Foreign State from whom he holds or
proceedings in the Indian court against claims to hold the property.
the person requesting consent to sue, or No decree can be executed against the
the foreign state trading within the property of any Foreign State except with
court’s jurisdiction or, holding immovable the consent of the Government of India,
property within the court’s jurisdiction, certified in writing by a Secretary to that
and the consent to sue is requested with Government.

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12 Suits by Foreign Entities and Foreign States

A foreign entity, being an ‘alien friend’, or residing in India without the permission
an ‘alien enemy residing in India with the of the Government of India or residing in
permission of the Central Government’ a foreign country but not holding the
may institute civil proceedings in Indian requisite license, cannot institute civil
courts as if they were citizens of India. An proceedings in India.
alien enemy is a person residing in a A Foreign State may sue in any
foreign country whose government is at competent Indian Court provided that the
war with India and who carries on object of the suit is to enforce a private
business in such country without a right vested in the ruler of such Foreign
licence in that behalf granted by the State or in any o cer of such Foreign
Government of India. An alien enemy State in his public capacity.

13 Institution of Civil Proceedings (Civil Courts)

A suit is commenced by the filing of a

plaint, which must contain the following
particulars:

i. name of the court;

ii. name, description and place of

residence of the plainti (s) and the
defendant(s);

iii. the cause of action;

iv. the facts showing that the court has

jurisdiction;
viii.a statement of the value of the
v. the facts showing that the suit is filed
subject matter of the suit for the
within the period of limitation;
purposes of jurisdiction and of court
vi. the relief claimed; fees; and

vii. where the plainti has allowed a set- ix. The plaint should have annexed to it a
o , or relinquished a portion of the list of documents referred to and/or
claim, the amounts so allowed, or relied upon by the plainti , which are
relinquished; relevant to the dispute and the claim.

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A suit must include the whole of the claim Once the suit is filed, the court issues a
which the plainti is entitled to make in writ of summons (accompanied by the
respect of the cause of action. If a plaint), to the defendant calling upon
plainti omits to sue in respect of, or them to appear and answer the claim of
intentionally relinquishes any portion of the plainti by filing their statement of
defence (written statement). The
their claim, they are precluded from
defendant must appear (either through
afterwards suing in respect thereof
legal representation or in person), on the
(unless they have obtained leave of the
date stipulated in the summons, and
court for the purpose). The plaint must be must file a written statement within 30
supported by an a davit deposed by the days from the date of service of summons
plainti verifying the correctness of extendable to 90 days. Pleadings may be
facts. amended with the leave of the court.

14 Procedure

• Disclosure: At a preliminary hearing

the court issues directions in relation
to disclosure under oath, of
documents referred to and relied
upon. The counterparty is entitled to
take inspection of the documents
disclosed. If a party’s disclosure is
inadequate, or the party does not
provide inspection, the other party
has the right to request the court to
direct disclosure, or inspection. A
party also has the right to request the
court for directions against the other
party to provide particulars, or to
answer interrogatories. A court may
non-suit a plainti , or strike-out the
defence of a defendant who has failed • Framing of issues: On completion of
to comply with an order for discovery, disclosure, the court, in consultation
or inspection, or to answer with the parties, frames issues for
interrogatories. determination in the suit.

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• Evidence: Oral testimony and witness • Hearing: The plainti , ordinarily, has
evidence in chief is filed by way of an the right to begin, and the other
a davit of evidence in chief, with a parties reply in turn. The party
right of cross-examination by the beginning has the right to reply
counter-party. generally on the whole case after all
parties have stated their case.

15 Civil Proceedings under the Commercial Courts Act

All cases filed in relation to ‘Commercial from INR 10 million so as to bring more
Disputes’3 of a ‘Specified Value’4 are commercial disputes within the Courts’
required to be filed before the relevant jurisdiction, by the Commercial Courts,
Commercial Court / Commercial Division Commercial Division and Commercial
having the relevant territorial Appellate Division of High Courts
jurisdiction. The ‘Specified Value’ may (Amendment) Act, 2018. The said
di er from State to State, being Amendment Act also provided for
p r e sc r i b e d by t h e r e l eva n t S t a t e establishment of commercial courts at
Government in consultation with the the district court level for the territories
concerned High Court, but will be above in respect of which the concerned High
INR 0.3 million. This figure was decreased Courts have original jurisdiction.

16 Pre-action conduct requirements

The CPC does not prescribe any pre-action suits filed without following this step, are
conduct requirements for ordinary civil liable to be rejected.5
suits.
A dispute settled through such court
Under the Commercial Courts Act, pre- sanctioned mediation can be decreed in
institution mediation and settlement in Court, making it enforceable immediately
accordance with procedure under the in execution. However, this pre-condition
Commercial Courts (Pre-Institution is not compulsory where urgent interim
Mediation & Settlement) Rules, 2018 is relief has been applied for by the plainti .
mandated prior to the plainti instituting In case of a suit filed in respect of an
a commercial suit. This pre-condition is o cial act against the Government of
mandatory in nature and commercial India, or any State, or a public o cer, at

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.

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least two month’s advance written notice written consent is required prior to its
of the intention of filing such suit is institution. Consent will be granted only
required to be issued to the relevant if the foreign state has subjected itself to
Government entity, containing su cient the jurisdiction of an Indian court. Such
details of the dispute and the claim. submission to jurisdiction may be by the
However, with the leave of the court, such foreign state instituting proceedings in
a suit may be instituted even without the the Indian court against the proposed
full two months’ notice. Urgent relief will plainti , or the foreign state trading
be granted only after giving the within the court’s jurisdiction or, holding
Defendant a reasonable opportunity to
immovable property within the court’s
defend itself.
jurisdiction - provided that the consent to
In case of civil proceedings against a sue is requested in relation to such trade,
foreign state, the Indian Government’s or property.

17 Institution of Civil Proceedings before Commercial Courts

The Commercial Courts Act has made sanctioned mediation, can be decreed
several amendments to the CPC to in Court, so making it enforceable
simplify and speed up resolution of cases. immediately in execution.
While some of the procedure is similar to
ii. The Plainti must file a list of all
the procedure for filing suits before a
documents in its power, control,
regular civil court (for instance, a suit is
custody or possession “pertaining to
commenced by filing a plaint containing
the suit” along with copies thereof,
the particulars as set out above), there
with the Plaint, when filing the same.
are certain di erences, some of which
include: iii. The defendant must file its Written
Statement within 30 days and no later
i. A suit which does not contemplate
than 120 days from the date of service
any urgent relief, cannot be instituted
of summons, failing which, its right to
unless the plainti exhausts the
file a written statement is forfeited.
remedy of pre-institution mediation
and settlement in accordance with iv. Parties are required to complete
procedure under the Commercial inspection within 30 days from filing
Courts (Pre-Institution Mediation & of the Written Statement or Written
Settlement) Rules, 2018. A dispute Statement to the Counter Claim,
settled through such court whichever is later. The Court may

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extend the time for a further period comply with any order passed in a
not exceeding 30 days. Exemplary case management hearing, the court
costs may be levied against a party may, levy costs for such non-
who deliberately fails to disclose all compliance; foreclose the non-
relevant documents which are in their complainant party’s right to file
power, possession or control. Parties a davits, conduct cross
are required to file a davits of examinations of witnesses, file
admission and denial of documents written submissions, address oral
disclosed and inspected within 15 arguments or make further
days of completion of inspection or arguments in trial; or, dismiss the
any later date fixed by the court. plaint or allow the suit where such
non-compliance is wilful, repeated
v. A case management hearing is and imposition of costs is not
required to be held no later than 4 adequate to ensure compliance.
weeks from the date of filing of
vi. Parties are required to submit written
a davit of admission or denial of
arguments, 4 weeks prior to
documents by all parties to the suit. At
commencing oral arguments,
the case management hearing, the
followed by revised written
Court may pass orders framing issues,
arguments, if any, within 1 week of
listing witness(es) to be examined by
completion of oral arguments.
the parties, fixing dates for leading of
Arguments are required to be closed
evidence, fixing dates for filing of no later than 6 months from the date
written arguments by the parties, of the first case management
fixing dates and time limits for oral meeting. Judgment is required to be
arguments to be advanced by the pronounced within 90 days of
parties etc. Should the party fail to conclusion of arguments.

18 Summary Suits in Civil Proceedings under Order 37 of the CPC6

A plainti may file a summary suit for monetary decree may be claimed in such
monetary claims upon negotiable a suit. Where any other relief is sought,
instruments (such as bills of exchange, the plainti must file a regular civil suit
hundis and promissory notes), or for under ordinary civil procedure.
recovery of debt or liquidated demand
arising on a written contract, or on a Where a suit is instituted as a summary
guarantee. No relief other than a suit, the defendant is not entitled to

6 Order 37, Rules 1-3 are set out in the End Note.

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defend as a matter of right, but must commercial causes to be tried as an

apply to the court for leave to defend and ordinary suit. Leave to defend may be
while so applying, be able to establish a unconditional, or conditional upon
prima facie defence in his favour. If he / deposit by the defendant of the whole, or
she establishes a defence to the part of the claim amount. If no defence is
satisfaction of the court, the defendant is made out, the court may pass summary
granted leave to defend and the summary judgment on the suit.
suit is transferred to the list of

19 Summary Judgments under the Commercial Courts Act

A party may apply for a summary may make its decision without recording
judgment, at any time after the writ of oral evidence.
summons is served on the defendant but
The court may pass such orders as
prior to framing of issues.
deemed fit including:
The court may give a summary judgment
I. judgment on the claim;
against a plainti or defendant, if the
court considers that, (a) the plainti has ii. conditional order;
no real prospect of succeeding in its claim
or the defendant has no real prospect of iii. dismissing a part of the claim and
successfully defending the claim; and (b) judgment on the remainder;
there is no other compelling reason why iv. striking out pleadings;
the claim should not be disposed of
before recording of oral evidence. v. d i r e c t i o n s t o p r o c e e d t o c a s e
management; and
Either party may submit documentary
evidence for consideration and the court vi. costs.

20 Class Actions

Various Indian statutes including a c t i o n ) . H o w e v e r, c l a s s a c t i o n

Companies Act and the Consumer jurisprudence in India is still developing
Protection Act, 2019, have codified the and remains largely untested as on date.
law on class actions. The CPC also
provides for a remedy by way of a Under the Companies Act, a minimum
representative action (similar to a class number of members or depositors of a

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company7 (other than a banking Governments are also empowered to file

company), may seek redressal as a class, a complaint either in their individual or
from the NCLT, against the company, its representative capacity for the interests
directors, auditors, experts, advisers or of consumers at large.
consultants for any fraudulent, unlawful
Additionally, Order 1 Rule 8 of the CPC
or wrongful acts that are prejudicial to
enables a group of plainti s to
the interests of the company, or its
collectively file a civil suit, with the
members or depositors, or are against
permission of the court, in a
public interest.
representative capacity for the benefit of
Under the Consumer Protection Act, one a group or class of persons having a
or more consumers having a common common interest in the subject matter of
interest in relation to any goods sold or the suit. This provision is an exception to
services provided, and seeking relief on the general rule that all persons
behalf of or for the benefit of the group, interested in a suit should be made
may file a class action on behalf of such parties thereto.
group, with the permission of the
A decree passed by the court is binding on
relevant consumer dispute redressal
all interested persons forming part of the
commission at the District, State or
group or class.
National level.8 The Central and State

7 Section 245(3) of the Companies Act read with Rule 2 of the National Company Law Tribunal (Second Amendment) Rules, 2019
I) In respect of a company with share capital:
a. the lesser of 5% of the total number of members of the company or 100 members; or
b. in a listed company – members holding at least 2% of the issued share capital; or
c. in an unlisted company – members holding at least 5% of the issued share capital.
ii) In respect of a company without share capital – at least ⅕ (one-fifth) of the total number of members;
iii) In case of an action by depositors:
a. the lesser of 5% of the total number of depositors or 100 depositors of the company; or
b. such 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.

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21 Evidence

The Indian Evidence Act, 1872, contains witness is permissible only under limited
provisions governing admissibility of any circumstances and in relation to
evidence in the Indian courts. Evidence questions arising directly out of the
may be documentary (digital records and cross-examination.
email communications are also
Witnesses must testify under oath before
admissible), or oral, through witness
the court and may be liable for the
testimony. Witness testimony must be
o ence of perjury under the Indian Penal
direct and hearsay evidence is
Code 1860 if they testify falsely.
inadmissible, except in certain limited
circumstances.

Evidence in chief is led by the witness

filing an a davit 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

22 Interim Relief:
22.1 Powers of the court to grant Interim Relief

Indian courts have extensive powers to i. there is a prima facie case in favour of
grant interim relief as a measure of the party seeking the order;
protection to preserve some property or ii. irreparable damage defeating the
the rights of a party pending the final very purpose of the suit may be
disposal of a suit. A party seeking interim caused to the party if the relief is not
relief should satisfy the court of the granted; and
following three conditions:
iii. the balance of convenience lies with
the party requesting the order.

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22.2 Types of Interim Reliefs

a. Attachment before Judgment: The in dispute in the suit is in danger of

court, if satisfied that the defendant, waste, damage, alienation, or that the
with intent to obstruct, or delay the defendant threatens, or intends to
execution of any decree that may be remove, or dispose of its property
passed against it, is about to abscond, with a view to defraud its creditors.
or leave the local limits of the court’s
c. S t a t u s q u o O rd e r : S ta t u s q u o
jurisdiction; or, remove / dispose of
generally refers to the existing state
the whole, or any part of its property
from the jurisdiction of the court, it of a airs, or circumstances. In some
may require the defendant to furnish respects, similar to an injunction, a
security to produce and place at the status quo order may be issued to
disposal of the court when required, prevent any of the parties involved in
the property, or the value of the same a suit from taking any action that may
as may be su cient to satisfy the alter the existing state of things. The
decree. In making such an order, the intent of such an order is to prevent
court may direct conditional harm, or preserve the existing
attachment of the whole, or any conditions, so that a party's position
portion of the property of the is not prejudiced in the interim.
defendant. If the defendant fails to d. Receiver: A court is empowered to
show cause against attachment, or appoint a receiver of any property
fails to furnish the security required, when it is just and convenient to do
the court may order that property s o . I n a m o r t g a g e e’ s s u i t f o r
(su cient to satisfy any decree which foreclosure, or sale, where the
may be passed in the suit) be mortgagee is entitled to enter into
attached. possession on default of payment of
The attachment will not a ect rights the mortgage money, the mortgagee
over assets or properties which were is prima facie entitled to the
in existence prior to the attachment, appointment of receiver.
of persons not parties to the suit (for
e. Other Orders: A court may pass such
example a tenancy).
interim orders as may be necessary to
b. Injunction: A court may pass orders of preserve the subject matter of the
temporary injunction restraining a dispute or the rights of the parties, for
defendant from taking some action, example, disclosure of assets,
where it is satisfied that the property furnishing of security, etc.

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22.3 Ex-Parte Orders in case of urgency

In cases of urgency, such as where the issued to the defendant. In such an event,
rights of a plainti may be defeated the defendant may apply for vacation /
should such relief not be granted modification of the order passed and
immediately, a court may pass an ad- after hearing the parties, the order may
interim order granting relief, on an ex be vacated, modified, or confirmed.
parte basis, without directing notice to be

22.4 Undertaking by a party applying for interim relief to pay damages

Certain courts, for instance the Bombay issued, to pay damages as the court may
High Court, mandate a party to whom award to compensate the other party in
interim relief has been granted, to the event the other party is a ected or
provide a written undertaking before prejudiced by such order.
such order granting interim relief is

23 Substantive / Final Relief

Indian courts have wide powers to mould or status, specific performance of

the reliefs and to make such orders as contracts, permanent injunctions,
may be necessary to meet the ends of damages, accounts, etc. Punitive or
justice and to award substantive relief. exemplary damages may be awarded in
Such relief includes declarations of title, exceptional circumstances.

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24 Specific Performance

• Prior to the Specific Relief • After the SR Amendment Act

(Amendment) Act, 2018 (“SR
The SR Amendment Act came into
Amendment Act”)
force on October 1, 2018. It limits the
Prior to the SR Amendment Act, the court’s discretion by making specific
grant of specific performance of a relief mandatory as opposed to
contract under the Specific Relief Act, discretionary. The Court may grant
1963, was discretionary. Specific specific performance of contracts
performance could be granted only (a) in which there exist no standards
where, (a) there existed no standard to ascertain the actual damage
for ascertaining actual damage caused by non-performance of such
caused by the non-performance of the contracts, or (b) wherein the act
act agreed to be done and of which agreed to be done is such that
specific performance was sought; or monetary compensation for non-
(b) when the act agreed to be done is p e r fo r m a n c e w o u l d n o t a o rd
such that compensation in money for adequate relief to the party su ering
its non-performance would not a ord b r e a c h . F u r t h e r, a r e b u t t a b l e
adequate relief. presumption is created that breach of
contract for transfer of immovable
Certain contracts could not be
property cannot be adequately
s p e c i f i c a l l y e n f o rc e d , s u c h a s
relieved by monetary compensation,
c o n t ra c t s w h e r e , ( a ) t h e n o n -
performance of which compensation whereas breach of contract for
would be an adequate relief; (b) the transfer of movable property may be
contract runs into such minute or relieved by monetary compensation,
numerous details or which is so except inter alia, when the subject
dependent on the personal matter of the contract is not an
qualifications or volition of the ordinary article of commerce, or is of
parties, or otherwise from its nature is special value to the buyer, or consists
such, that the court cannot enforce of goods which are not readily
specific performance of its material obtainable in the market. The Act in
terms; (c) the contract is, in its nature its present form gives a discretionary
determinable; and (d) the power to the courts to award specific
performance of which involves the performance only in exceptional
performance of a continuous duty cases, with monetary compensation
which the court cannot supervise. being the norm.

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The nature of contracts for which innocent party is not entitled to seek
specific performance may be denied specific performance.
has been made narrower, i.e. in the
• Special status to Infrastructure
following circumstances: (a) where a
projects
party to the contract has obtained
substituted performance; (b) where An all new section provides that in
directing specific performance would case of contractual disputes relating
involve the performance of a to infrastructure projects, the court
continuous duty which a court cannot shall not grant an injunction in any
supervise; (c) where the contract is so suit, where it would cause hindrance
dependent on the personal or delay in the continuance or
qualifications of the parties that the completion of the infrastructure
c o u r t c a n n o t e n f o rc e s p e c i f i c project.
performance of its material terms; (d)
where a contract is determinable in
nature.

• Substituted Performance

The concept of allowing the innocent

party to obtain substituted
performance from a third party or its
own agency and recover expenses and
costs actually incurred or su ered,
from the breaching party, has been
introduced by the SRA Amendment
Act. Once such substituted
performance has been obtained, the

25 Costs

Indian law recognises the principle that claims, or defences. The awarding of
costs follow the event i.e. the costs of costs is up to the discretion of the court
legal proceedings are awarded to the and the court has the power to determine
successful litigant. Courts are also by whom, or out of what property and to
empowered to direct payment of what extent such costs are to be paid. In
compensatory costs by a party who practice the costs awarded are
frivolously delays proceedings, or substantially lower than the costs
knowingly raises false, or vexatious actually incurred, although the new

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Commercial Courts Act provides for a Provided that the Court may make an
general rule for payment of costs by the order deviating from the general rule
judgment debtor and sets out the basis of for reasons to be recorded in writing”.
awarding costs.
• Va r i o u s c o n s i d e r a t i o n s w h i l e
Indian courts may order security for costs granting costs, including, conduct of
from a plainti not resident in India, if it parties, whether a party has
does not possess su cient immovable succeeded; whether a frivolous
property, or assets in India to satisfy any counter-claim has been made leading
decree that may be passed against him. In to delay; whether a reasonable o er
cases where the subject of the suit is to settle is made, which is
immoveable property, courts will direct unreasonably refused.
such plainti s, who do not possess
• Courts are now also beginning to
su cient immoveable property in India,
impose costs for filing of frivolous
to furnish security for any anticipated
proceedings. For instance, in Vijay
costs on the defendant. The quantum of
Karia v. Prysmian Cavi E Sistemi SRL,9
such anticipated costs and required
the appellants applied to the
security is left to the discretion of the
Supreme Court for special leave to
courts. Where such security is directed to
appeal (under Article 136 of the
be furnished by a plainti , the suit may be
Constitution of India), against the
dismissed if such security is not provided.
Bombay High Court’s order to enforce
The amendments made to the CPC by the a foreign award. The Apex Court
Commercial Courts Act ensures that the passed this order by observing that
commercial court has wide discretion to the Appellants were “indulging in a
determine, whether costs are payable, by speculative litigation with the fond
whom and what quantum. Certain points hope that by flinging mud on a
that may be kept in mind are: foreign arbitral award, some of the
mud flung would stick”, and given
• Costs shall mean ‘reasonable costs’,
that the Court’s time was
relating to fees and expenses of
unnecessarily taken up, imposed
witnesses, legal fees and expenses,
exemplary costs of INR 50 lakhs on
any other expenses incurred in
the appellants.
connection therewith.

• Cost to follow event mechanism – “...

the general rule is that the
unsuccessful party shall be ordered to
pay the costs of the successful party.

9 Vijay Karia v. Prysmian Cavi E Sistemi SRL (2020) 11 SCC 1.

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26 Third Party Funding

In its purest form, the third party funding circumstances). The financier may be
of a dispute is an arrangement between a required to give security for the payment
funder and a litigant in which the funder of all costs incurred and likely to be
‘funds’ or provides monetary support to a i n c u r r e d by a n y d e f e n d a n t . T h i s
litigant for pursuing and / or enforcing a amendment, made more than two
claim, in exchange for a share in any decades ago, carries the implicit
ensuing award or settlement. The funding assumption that a plainti has been
provided is ‘non-recourse’ and the funder funded in its civil litigation (and that
is repaid the funded amount (its therefore, litigation financing, is
investment) along with its profit, only permitted).
upon a successful outcome of the action,
The Arbitration Act, as amended in 2015,
and not otherwise. The investment or the
also contains an implied recognition that
asset is the litigant’s claim or award.
there may be cases funded by a party not
While there is no express legislation or otherwise concerned with the dispute. A
regulation around litigation financing (as potential arbitrator is required to
it is also known) in India , there have been disclose any circumstances, which are
several decisions by superior courts likely to give rise to justifiable doubts as
which endorse the view that third party to his independence or impartiality.
funding of disputes is not barred under
In its landmark decision, in Bar Council of
Indian law. 10 However, although the
India v. A K Balaji & Ors. (in relation to
principles of maintenance and champerty
foreign lawyers being permitted to
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

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 plainti (in certain

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 2023 © Cyril Amarchand Mangaldas

Guide to Litigation in India

practice in India), the Supreme Court of As noted in Bar Council of India, Indian
India, observed (as obiter) that that third- lawyers cannot take up cases on a
party funding was permissible in India, contingency or success fee basis,
stating. “There appears to be no inasmuch as the Bar Council of India
restriction on third parties (non-lawyers) Rules, 1961 explicitly prohibit Indian
funding the litigation and getting repaid lawyers from acting in cases where they
after the outcome of the litigation.” 12 have any financial interest.13

27 Binding E ect of Judgments

A decision of the Supreme Court and A decision rendered by a three judge

decisions of the Privy Council, which do bench would be binding on a proceeding
not conflict with any decision of the before a two judge bench). This principle
Supreme Court, rendered prior to 1950 of judicial discipline also applies to High
(when the Supreme Court was Courts.
established), are binding on all High
Courts, lower courts and tribunals in The CPC recognises the principle of res
India. Decisions of a High Court are judicata and a final decision on any
binding within that State; a decision of matter by a competent court is binding on
the High Court of one State is only the parties to the litigation and persons
persuasive in other States. The decision claiming under, or through the parties.
of larger benches of the Supreme Court The same issue cannot be further
would be binding on smaller benches (e.g. litigated in subsequent proceedings.

28 Decisions of Foreign Courts

Rulings of foreign courts are of courts. Decisions of US courts, in

persuasive value and not binding on constitutional matters, administrative
Indian courts. Decisions of courts of principles, antitrust matters, and
Commonwealth Countries (most often, intellectual property or technology
the UK), are often cited before High matters are also occasionally cited for
Courts and the Supreme Court in the persuasive value.
absence of any binding decision of Indian

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/

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29 Enforcement of Judgments/Decrees and Orders

A judgment or decree may be enforced in The court may require the judgement
execution proceedings.14 Money decrees debtor to be examined on oath to
are executed by attachment and sale of ascertain the assets available for
the judgement debtor’s properties - execution and may, if required, appoint a
m ova b l e a n d i m m ova b l e . C e r t a i n receiver over such assets pending
properties are immune from execution execution.
(e.g. personal ornaments which cannot be
Under the Contempt of Courts Act, 1971,
parted with by any woman by virtue of
wilful disobedience of a court order
religious usage / apparel, tools of
amounts to ‘civil contempt’ and is
artisans, books of account, stipends and
punishable with a fine of up to INR 2000,
gratuities received from a government
or with simple imprisonment of up to six
s e r va n t , p r ov i d e n t f u n d , e tc . ) . I n
months, or both.
exceptional circumstances, Indian courts
will allow money decrees to be executed
by the arrest and detention in civil prison
of the judgement debtor.

14 The procedure for execution of decrees is set out in the End Note.

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30 Enforcement of Foreign Judgments

The Government of India has notified debtor entering appearance or where

certain countries as reciprocating no opportunity to lead evidence is
territories15 and subject to certain given), or is founded on an incorrect
restrictions, a final judgment of a view of international law, or a refusal
court of a reciprocating territory may to recognise Indian law in cases in
be enforced in India between the which such law is applicable, or was
parties, as a judgment of an Indian obtained in proceedings opposed to
court by filing an execution natural justice / obtained by fraud or it
application. Where the judgment is sustains a claim which is founded on a
issued by a court of a non- breach of any law in force in India.
reciprocating territory, it may be Once a foreign judgment is held to be
enforced by instituting a suit on such enforceable, it will be enforced in the
judgment. A foreign judgment would same manner as a decree of an Indian
be enforceable except where it has not court.
been pronounced by a court of
There is no provision under Indian law
competent jurisdiction, or is not on
for enforcement of interim orders of a
merits of the case (for example, a
foreign court that do not conclusively
default judgment or a summary
decide an issue.
judgment without the judgment

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31 Appeals from Decrees

Every original decree may be challenged tribunal, if it feels that the matter
in appeal, unless an appeal is precluded involves a substantial question of law.
by statute. An appeal also lies against
Note that execution of a decree is not
certain original orders specified in the
suspended while an appeal is pending.
CPC. The first appeal may include grounds
The appeal court may however, for
of both questions of fact and/or law.
reasons to be recorded, stay the
Unless barred by statute, second appeals
impugned decree and / or execution
lie to the High Court only on substantial
thereof, pending the appeal. While doing
questions of law.
so, it may also direct the judgement
The judgment, or decree, or final order debtor to deposit the decretal amount in
of a High Court may be appealed before court pending hearing of the appeal.
the Supreme Court if the High Court
In so far as cases pertaining to
concerned certifies that the matter
Commercial Disputes under the
involves a substantial question of law of
Commercial Courts Act are concerned, an
general importance; or believes that the
appeal lies to the Commercial Appellate
matter needs to be decided by the
Division of the concerned High Court,
Supreme Court.
which must be preferred within a period
Where there is no further right to appeal, of 60 days from the date of the order /
t h e S u p r e m e C o u r t m a y, o n t h e judgment. The Commercial Appellate
application of an aggrieved party and in Division must endeavour to dispose of
its sole discretion, grant special leave to appeals within a 6 month period.
appeal against any order of a court or

32 Appeals from Orders

Only certain orders passed during the circumstances, invocation of the High
course of civil proceedings may be Court’s writ and supervisory jurisdiction.
challenged by way of appeal. No appeal Where an order is appealed, the appellate
lies from an order not specified in the court may, if su cient cause is made out,
CPC. An unsuccessful litigant may stay the impugned order pending
however avail of the alternate remedies disposal of the appeal.
of civil revision, review and in limited

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33 Revision

Where there is no appeal provided for, the of revision, the High Court is empowered
High Court has the power by revision to to pass any order it deems fit. A revision
examine the record of any case decided does not operate as a stay of any other
by a subordinate court where there is suit, or proceeding then pending, unless
a mistake, illegality, or material the High Court specifically stays such
irregularity in the exercise of jurisdiction other suit or proceeding.
by such subordinate court. In the course

34 Review

Where either no appeal is provided for, or ii. There is some mistake, or error
no appeal is preferred, the parties can apparent on the face of record; or
apply to the court passing the decree to
review its decision. A review lies when: iii. There is any other su cient reason.
The reason should be serious enough
i. The aggrieved party has discovered a and it is only when the Court would
new and important matter of have reason to believe that if re-
evidence which, after the exercise of examination or reconsideration of the
due diligence, was not within their decree is not done, there would be
knowledge, or could not have been a miscarriage of justice, the
produced by them at the time when discretionary power of review would
the decree was passed; or be exercised.

35 Reference

Where, at the time of or prior to hearing a doubt, and refer such statement with its
suit or an appeal in which the decree is own opinion on the matter to the High
not appealable, or at the time of Court for its decision.
execution of such decree, the court trying
The court making the reference may
the suit or appeal or executing the
either stay the proceedings or continue
decree, has a reasonable doubt as to any
hearing the case, notwithstanding the
question of law, such court may either
reference, and proceed to pass a decree
suo motu or on an application by any of
or an order contingent upon the High
the parties, refer the matter for the
Court’s decision. However, such decree or
decision of the High Court. The court
order shall only be executed on the
making such reference must draw up a
receipt of the High Court’s judgment on
statement of the facts of the case and the
the referred matter.
particular point of law on which there is a

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B. TRIBUNALS
Certain 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.

Guide to Litigation in India

01 National Company Law Tribunal (“NCLT”) and National Company Law

Appellate Tribunal (“NCLAT”)

On and from June 1, 2016, the erstwhile which the said Tribunals are empowered
Company Law Board (“CLB”) constituted to determine. The NCLT thus also reduces
under the Companies Act, 1956, was the burden of District Courts and High
dissolved and the NCLT and NCLAT were Courts which have huge backlogs and
constituted in its place under the frees up judges to hear other matters.
Companies Act, 2013 (which replaced the
The NCLT has its Principal Bench in New
Companies Act, 1956).
Delhi and 15 other Benches across India.17
The purpose of the NCLT and NCLAT is to The NCLAT has its Principal Bench in New
avoid multiplicity of litigation before Delhi and one other Bench in Chennai.
various forums (such as High Courts, the
erstwhile Company Law Board (“CLB”), All proceedings pending before the BIFR
Board for Industrial & Financial and the AAIFR, constituted under the Sick
Reconstruction (“BIFR”), Appellate Industrial Companies (Special Provisions)
Authority for Industrial & Financial Act, 1985 (which was also repealed in
Reconstruction (“AAIFR”), and instead to 2016)), stand abated, although the
consolidate all corporate jurisdiction into concerned company in respect of which
one forum. So for instance, all matters such proceeding stands abated, has the
relating to schemes of compromise, liberty of initiating fresh proceedings
a r ra n g e m e n t , a m a l g a m a t i o n a n d before the NCLT under the Insolvency and
reconstruction, insolvency and Bankruptcy Code, 2016.
bankruptcy proceedings, shareholders
Orders of the NCLT are appealable to the
disputes relating to oppression,
NCLAT. Additionally, the NCLAT also hears
mismanagement etc., are now heard by
appeals against orders passed by the
the NCLT, with appeals being heard by the
Insolvency and Bankruptcy Board of
NCLAT (instead of a High Court).
India, the Competition Commission of
The jurisdiction of the NCLT / NCLAT is India and the National Financial
exclusive and the Companies Act, 2013 Reporting Authority. An order from the
mandates that no civil court shall have NCLAT can be appealed to the Supreme
jurisdiction to entertain any suit or Court if it is in respect of a question of
proceeding in respect of any matter law.

17 As of April 2023, 16 Benches of NCLT, have been set up: two at New Delhi (being the Principal bench and the New Delhi Bench) and
one each at Ahmedabad, Allahabad, Bengaluru, Chandigarh, Chennai, Guwahati, Hyderabad, Kolkata, Jaipur, Kochi, Cuttack,
Amaravati, Indore and Mumbai.

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02 Proceedings under the Insolvency and Bankruptcy Code, 2016 (“IBC”)

IBC was enacted with a view to iii) if the NCLT believes that it is just and
consolidate the regime for re- equitable that the company should be
organization and insolvency resolution of wound up;
corporate persons, partnership firms and
iv) the a airs of the company have been
individuals18 in a time bound manner (180
conducted in a fraudulent manner; or,
days extendable to 270 days, although
the company was formed for
practically most cases take much longer),
fraudulent and unlawful purpose or
reduce stressed assets and enhance
the persons concerned in its
credit availability in the market.
formation or management have been
The NCLT has exclusive jurisdiction over guilty of fraud, misfeasance or
all proceedings arising under the IBC, misconduct in connection therewith;
such as applications for insolvency / or
liquidation, schemes for reconstruction,
v) if the company has made a default in
amalgamation and revival plans for
filing with the Registrar of Companies
financially distressed companies etc. Any
its financial statements or annual
‘financial creditor’, ‘operational creditor’
returns for immediately preceding 5
or ‘corporate debtor’ is entitled to initiate
consecutive financial years.
the Corporate Insolvency Resolution
Process (“CIRP”). The IBC also provides for
voluntary liquidation by a corporate
entity.

Under the Companies Act, 2013 a

company may be wound up and
liquidated by the NCLT, if:

i) the company has passed a special

resolution that it should be wound up
by the Tribunal, i.e. a voluntary
liquidation;

ii) the company has acted against the

interests of the sovereignty and
integrity of India, public order,
decency or morality;

18 As of April 2023, the provisions for insolvency resolution of individuals and partnership firms have only been notified qua personal
guarantors of corporate debtors (and not for other individuals and partnership firms).

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Guide to Litigation in India

A financial default of at least INR 10 employees, shareholders, members,

million can trigger the CIRP.19 Upon an guarantors and creditors. The NCLT is
application for CIRP being admitted by vested with the discretion to finally
the NCLT, all other legal proceedings are approve or reject the resolution plan.
automatically stayed by a moratorium
Alternatively, if during the insolvency
period of 180 days, extendable by a
resolution process, the resolution
further 90 days. The declaration of
professional informs the NCLT that the
moratorium on the company prohibits
Committee of Creditors has not been able
any institution or continuation of
to agree on a resolution plan or has
litigation against the concerned
decided to liquidate the corporate
company, mandates maintenance of
debtor/ concerned company, the NCLT
status quo of the assets by the company
may then pass an order for such
including prohibition on any transferring,
liquidation.
encumbering, alienating or disposing of
such assets and requires the creditors to Secured creditors have the right to either,
refrain from enforcing any security relinquish their security interest and
interest against the corporate debtor. receive proceeds from the sale of assets
by the liquidator, or to realize their
During the statutory moratorium period,
s e c u r i t y i n t e r e s t i n d e p e n d e n t l y,
an Interim Resolution Professional (and
although it may approach the NCLT to
thereafter a final Resolution
facilitate the realization of the security
Professional), is appointed and a
interest if required.
C r e d i t o rs C o m m i t t e e (c o m p r i s i n g
financial creditors, secured or The entire liquidation process should be
unsecured), is constituted to decide (with completed within 1 year. After the assets
at least 66% majority) on a revival plan, if of the corporate debtor have been
revival is possible, of the corporate completely liquidated, the liquidator
debtor. The Resolution Professional makes an application to the NCLT for the
manages the a airs of the corporate dissolution of the corporate debtor and
debtor and operates its business as a the NCLT passes an order declaring that
going concern under the broad directions the corporate debtor stands dissolved
of the Creditors’ Committee. Operational from the date of such order.
creditors do not possess the right to
participate in the resolution process and The IBC further provides that the
the decision of the Creditors’ Committee proceeds from the assets in the
is binding on them. Once approved by the liquidation trust shall be distributed in
N C LT , t h e p l a n i s b i n d i n g o n a l l the following order of priority: a) first, the
stakeholders; the corporate debtor, its insolvency resolution process costs and

19 The minimum pecuniary threshold for initiating CIRP under IBC has been increased from INR 0.1 million to INR 10 million vide
Notification no. S.O. 1205(E) dated March 24, 2020.

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 Guide to Litigation in India

liquidation costs in full; (b) second, pari passu basis; (f) sixth, any remaining
workmen’s dues for the period of twenty debts and dues (including debts and dues
four months preceding the liquidation of operational creditors); (g) seventh, any
commencement date and debts owed to a preference shareholders; and (h) eighth,
secured creditor if such creditor has equity shareholders or partners, as the
relinquished its security interest, on a case may be.
pari passu basis; (c) third, wages and any
unpaid dues owed to employees other Voluntary liquidation is also available to
than workmen for the period of twelve a corporate person if it is a ‘going
months before the liquidation concern’ and has no debt / is able to show
commencement date; (d) fourth, financial that it can repay its debt in full from the
debts owed to unsecured creditors; proceeds of the assets sold in voluntary
(e) fifth, any amounts owed to the state liquidation. The prior approval of two-
government and the central government thirds of its members and two-thirds (in
including the amount to be received on value), of its creditors is also required. As
account of the Consolidated Fund of India is the case with the regular liquidation
and the Consolidated Funds of a State, if procedure, the liquidator is to make an
any, in respect of the whole or part of the application to the NCLT in the place
period of two years preceding the where the a airs of the corporate person
liquidation commencement date and have been completely wound up and the
debts owed to a secured creditor for any NCLT will pass an order stating that the
unpaid amounts following the corporate debtor shall stand dissolved
enforcement of security interest, on a from the date of such order.

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03 Debt Recovery Tribunal (“DRT”) and Debt Recovery Appellate

Tribunal (“DRAT”)

• Recovery actions by Banks and However, this prohibition does not

Financial Institutions exclude the writ jurisdiction of a High
Court or the ability to apply to the
T h e D RT a n d D R AT h a v e b e e n
Supreme Court for special leave to
constituted under the provisions of
appeal against any order.
the Recovery of Debts and
Bankruptcy Act, 1993(“RDB Act”), for • Jurisdiction under the Securitisation
establishment of Tribunals for and Reconstruction of Financial
expeditious adjudication and Assets and Enforcement of
recovery of debts due to Banks and Securities Interest Act, 2002 (the
Financial Institutions and for matters “SARFAESI Act”)
connected therewith. There are 39
The DRT also has jurisdiction in
DRT's and 5 DRAT's functioning in
relation to applications filed by or
India.
against a defaulting borrower /
The DRT has exclusive jurisdiction (to mortgagor / guarantor in relation to
the exclusion of all other courts), to actions of a Secured Creditor (such as
decide cases filed by banks and Banks / Financial Institutions)
financial institutions for recovery of initiated under the SARFAESI Act, for
debts exceeding INR 2 million. (If the enforcement of security interest (i.e.
claim is less than INR 2 million, it security including mortgage or
would have to be filed before a regular charge on immovable properties
civil court). On a successful given for due repayment of a loan).
application the DRT issues a recovery
The SARFESI Act is unique in that it
certificate in favour of the applicant
empowers banks and other financial
bank / financial institution, pursuant
institutions to issue demand notices
to which the debt may be recovered
to defaulting borrowers and
through various measures such as
guarantors calling upon them to
attachment and sale of moveable or
discharge their dues in full within 60
immoveable properties, arrest of the
days from the date of the notice. If the
debtor, detention to prison and
borrower does not comply and fails to
appointment of receiver.
repay the loan, Banks / Financial
Appeals against orders of the DRT may Institutions can without any
be filed before the DRAT. Orders of the intervention of Court / Tribunal, resort
DRAT and/or the DRT cannot be to either of the following three
challenged before a civil court. courses of action:

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i) take possession of the security; Banks / Financial Institutions, to

Asset Reconstruction Companies
ii) t a k e o v e r t h e m a n a g e m e n t /
(“ARCs”). The Act provides for the
administration of the security asset;
establishment of ARCs which are
and
regulated by the Reserve Bank of
iii) put the property for lease, sale, or India (the “RBI”), India’s banking
appoint a person to manage the asset r e g u l a t o r, w i t h a m a n d a t e t o
concerned. securitize the acquired financial
assets.
The SARFAESI Act also provides for
sale of a debtor’s financial assets by

04 Securities & Exchange Board of India (“SEBI”), and Securities

Appellate Tribunal (“SAT”)

SEBI was set up to protect interests of associated with securities in any manner,
investors in securities and to promote the exercising power under the Securities
development of and regulate the Contracts (Regulation) Act, 1956, as may
securities market. It regulates the be delegated to it by the Central
business in stock exchanges, any other Government etc. It has 3 functions rolled
securities markets and matters into one body: (i) quasi-legislative - it
connected therewith including issues regulations in its legislative
registration of entities, promotion, capacity, (ii) quasi-executive - it conducts
regulation etc. of intermediaries investigation and enforcement action,

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Guide to Litigation in India

and (iii) quasi-judicial - it passes rulings are appealable before the Supreme Court.
and orders, and can inter alia, restrict a
SEBI and SAT have exclusive jurisdiction
person from accessing the securities
and no civil court may entertain any
market and suspend trading of any
proceeding in respect of a matter that is
security in a recognized stock exchange.
within their jurisdiction.
All orders passed by SEBI may be
appealed before the SAT. The orders of SAT

05 Competition Commission of India (“CCI”)

The CCI was constituted under the power to modify the terms thereof,
Competition Act, 2002, to inter alia, should it find that the transaction will
monitor and regulate anti-competitive have an appreciable adverse e ect on
agreements, abuse of dominant positions competition in India. It may also impose a
and merger control. penalty on the o ending party.

The CCI is empowered to hear complaints In 2017 the Government abolished the
a n d p a s s o rd e r s p r o h i b i t i n g a n y Competition Law Appellate Tribunal
agreement that it considers anti- (COMPAT) in response to criticism in
competitive, or an abuse of a dominant relation to the multiplicity of tribunals
position. All mergers / amalgamations and shifted all appeals from the CCI to the
which satisfy certain threshold NCLAT instead. An appeal may be filed
provisions under the Act, are mandatorily against an order of the NCLAT before the
to be notified to the CCI, which has the Supreme Court.

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06 Telecom Regulatory Authority of India (“TRAI”) and Telecom Disputes

Settlement and Appellate Tribunal (“TDSAT”)

TRAI was constituted to regulate telecom providers, between a service provider and
services, including fixation/revision of a group of consumers.
tari s for telecom services which were
The TDSAT exercises jurisdiction over
earlier vested in the Central Government.
telecom, broadcasting, information
TRAI is empowered to issue directions,
technology and airport tari matters,
orders and regulations covering a wide
under the TRAI Act, 1997, the Information
range of subjects including tari ,
Technology Act, 2000 and the Airport
interconnection and quality of service.
Economic Regulatory Authority of India
TRAI is also vested with the power to
Act, 2008. TDSAT exercises original as well
issue directions to Service Providers.
as appellate jurisdiction in regard to
Appeals from orders of the TRAI lie before telecom, broadcasting information
the TDSAT. The TDSAT also adjudicates technology and airport tari matters. In
disputes between a licensor and a regard to cyber matters the TDSAT
licensee, between two or more service exercises only the appellate jurisdiction.

07 Real Estate Regulatory Authority (“RERA”)

The Real Estate (Regulation and

Development) Act, 2016 (“RERA Act”) was
enacted in order to set up a RERA in every
State for regulating the real estate sector
and to provide consumers/home buyers a
specific tribunal for adjudication of
property disputes. The RERA Act casts
obligations upon real estate agents,
promoters of projects and regulates the
registration and conduct of real estate
projects. Appeals from orders of RERA
may be filed before Real Estate Appellate
Tribunal (“REAT”). Presently, only a few
s t a t e s i n I n d i a h av e e s t a b l i s h e d
permanent REATs.

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08 Tax Tribunals

A hierarchy of tribunals commencing

from the Assessing O cer to the
Commissioner Appeals and finally the
Income Tax Appellate Tribunal (“ITAT”)
has been set up under the Income Tax Act,
1961 to adjudicate income tax related
disputes. Appeals from ITAT lie to the High
Court.
Separately, the Customs Excise and
Service Tax Appellate Tribunal (“CESTAT”)
adjudicate appeals from decision of
Revenue Authorities under the Customs
Act, 1962, Central Excise Act, 1944, Finance
Act 1994 and the Customs Tari Act, 1975. an appellate body over decisions of the
assessment authorities on the
A Goods and Services Tax Appellate applicability and assessment of Goods
Tribunal is also intended to be set up as and Services Tax (GST) on a tax payer.

09 Consumer Dispute Forums/Commissions

Under the Consumer Protection Act, 2019, jurisdiction on these fora, and is an
a quasi-judicial machinery has been set additional remedy available to the
up at the district, state and central levels, consumer. As such, it is open to a
to provide a speedy and simple redressal consumer / complainant to file a regular
of consumer disputes and complaints civil suit in a civil court in respect of the
against goods or service providers, in cause of action.
relation to goods and services purchased
by consumers. Depending on the value of
the goods, or services and compensation
claimed, a complaint may be filed before Consumer Protection

the District Commission, State

Commission, or National Commission
which has pecuniary and territorial
jurisdiction over the matter. 20 This
statute does not confer exclusive

20 Under the Consumer Protection Act, the District Consumer Dispute Redressal Commission is empowered to hear complaints where
the value of the goods or services paid as consideration does not exceed INR 10 million. The State Consumer Dispute Redressal
Commission is empowered to hear complaints where the value of the goods or services paid as consideration exceeds INR 10
million but does not exceed INR 100 million. The National Consumer Dispute Redressal Commission is empowered to hear
complaints where the value of the goods or services paid as consideration exceeds INR 100 million.

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10 Central Electricity Regulatory Commission and Appellate Tribunal

for Electricity

The Central Electricity Regulatory The Appellate Tribunal for Electricity

Commission (“CERC”) was set up to inter (“APTEL”) has the jurisdiction to look into
alia determine tari s for electricity, appeals from the CERC, State Regulatory
adjudicate disputes involving generating Commissions, the Adjudicating Authority
companies or transmission licensees in and Joint commissions constituted under
relation to imposition of tari s, quality, the Electricity Act, 2003. It is conferred
quantity and access to services for with original jurisdiction to hear
providing electricity. The Electricity Act, petitions and issue directions to any
2003 also constitutes state regulatory appropriate commission for performance
commissions and joint commissions to of its statutory functions.
decentralize the working of the CERC.

11 Labour Courts & Industrial Tribunals

Labour Courts and Industrial Tribunals dismissal of workers, illegality, or

are set up under the provisions of the otherwise of strikes and lockouts etc.
Industrial Disputes Act, 1947. Conciliation Industrial Tribunals deal with collective
O cers are charged with the duty of disputes such as wages, hours of work,
mediating in and promoting the leave, retrenchment, closure etc.
settlement of industrial disputes. (although, if the number of workmen are
likely to be a ected is 100 or less, a
Labour Courts adjudicate industrial
Labour Court may adjudicate these
disputes concerning issues such as those
matters).
related to standing orders, discharge, or

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12 National Green Tribunal (“NGT”)

The NGT was established under the matters connected therewith. The NGT
National Green Tribunal Act, 2010 to deal has benches in various cities, with the
with cases relating to environmental principal bench in Delhi. Appeal from
protection, conservation of forests, orders of the NGT lie with the Supreme
safeguarding natural resources, and Court.

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End Notes /
Important Terms
Guide to Litigation in India

No. Term Meaning

1. Advocate Every State appoints an Advocate General to advise and represent

General the State in matters pertaining to and/or involving the State.
Attorney The Attorney General of India is the Government of India’s Chief
General Legal Advisor, and its primary lawyer in the Supreme Court of
India.
Solicitor The Solicitor General assists the Attorney General, along with four
General Assistant Solicitor Generals.

2. Cause of A cause of action (sometimes called a claim) is a set of facts

action sufficient to justify a right to sue. It is a bundle of essential facts,
which are necessary for the plaintiff to prove before he can
succeed. A cause of action generally encompasses both the legal
theory (the legal wrong the plaintiff claims to have suffered) and
the remedy (the relief a court is asked to grant).

3. Chamber Miscellaneous interlocutory applications which are heard before a

Summons judge in chambers (and not in open court), as specified in the Rules
of each Court.
Chamber Summons originated from the time when
attorneys/solicitors did not have a right of audience before a court.

4. Commercial Section 2 (1) (c):

Dispute "commercial dispute" means a dispute arising out of–
(Section 2(1)(c) (i) ordinary transactions of merchants, bankers, financiers and
of the traders such as those relating to mercantile documents,
Commercial including enforcement and interpretation of such documents;
Courts Act)
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft
equipment and helicopters, including sales, leasing and
financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively
in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;

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(xi) joint venture agreements;

(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the
services industry including outsourcing services and financial
services;
(xiv) mercantile agency and mercantile usage;
(xv) partnership agreements;
(xvi) technology development agreements;
(xvii) intellectual property rights relating to registered and
unregistered trademarks, copyright, patent, design, domain
names, geographical indications and semiconductor integrated
circuits;
(xviii) agreements for sale of goods or provision of services;
(xix) exploitation of oil and gas reserves or other natural
resources including electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and
(xxii) such other commercial disputes as may be notified by the
Central Government.
Explanation. -- A commercial dispute shall not cease to be a
commercial dispute merely because---
(a) it also involves action for recovery of immovable property or
for realisation of monies out of immovable property given as
security or involves any other relief pertaining to immovable
property;
(b) one of the contracting parties is the State or any of its
agencies or instrumentalities, or a private body carrying out
public functions;

5. National The NCLT was constituted under the Companies Act, 2013, with
Company Law effect from June 1, 2016, with exclusive jurisdiction for
Tribunal adjudication of company law matters and matters under the
(“NCLT”) Insolvency and Bankruptcy Code, 2016.
[erstwhile All cases pending with the CLB have been transferred to the NCLT
Company Law and the CLB stands dissolved.
Board (“CLB”)] Appeals from the NCLT lie before the National Company Law
Appellate Tribunal (“NCLAT”).
[Note: The CLB was constituted by the Central Government as an
independent quasi-judicial body under the Companies Act, 1956].

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6. Coram The sitting Judge(s) before whom a matter is listed for

hearing/directions etc.

7. Court An officer of the High Court appointed during the pendency of

Receiver proceedings in order to safeguard and prevent misuse of the
disputed property.

8. Execution of The procedure for execution of a decree is as under:

decrees - An application for execution is required to be filed by the
(Order 21, CPC) applicant / judgment creditor and notice thereof given to the
defendant / judgment debtor.
- The court will then issue its process for execution in accordance
with the nature of the application. The process specifies a date
before which it is to be executed, as also a returnable date.
- Notice of the process is served through the court to the
defendant.
- On the returnable date, the process may be made absolute by
the court and a warrant issued for attachment of the
defendant’s property (which includes directions prohibiting
the defendant from alienating, or charging the property in any
manner).
- An application must then be made by the applicant for a
warrant for sale of the property and a warrant for sale issued by
the court. The warrant for sale requires the defendant to attend
the court office on a specified date to settle the terms of the
sale and proclamation thereof.
- The terms of the sale (usually by way of public auction), are
fixed in the presence of both parties.
- Public notice of the sale must be given in at least two
newspapers, at least 15 days before the date of the auction. If
required by the court, notice must also be served on the
defendant.
- After the public auction, the court will make an order
confirming the sale, whereupon the sale becomes absolute. An
order will also be passed by the court directing that the
decretal amount be paid over to the applicant and balance
remaining, if any, be paid over to the defendant.
- It may be noted that at any time during the above procedure the
defendant may tender the decretal amount either directly to
the applicant, or through the court, in which case the execution
process will be dropped.

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9. Execution of 1) Where a certified copy of a decree of any of the superior Courts

decrees of any reciprocating territory has been filed in a District Court,
passed by the decree may be executed in Indi] as if it had been passed by
Courts in the District Court.
reciprocating 2) Together with the certified copy of the decree shall be filed a
territory certificate from such superior Court stating the extent, if any,
(Section 44A, to which the decree has been satisfied or adjusted and such
CPC) certificate shall, for the purposes of proceedings under this
section, be conclusive proof of the extent of such satisfaction
or adjustment.
3) The provisions of section 47 shall as from the filing of the
certified copy of the decree apply to the proceedings of a
District Court executing a decree under this section, and the
District Court shall refuse execution of any such decree, if it is
shown to the satisfaction of the Court that the decree falls
within any of the exceptions specified in clauses (a) to (f) of
section 13.
Explanation 1.-- "Reciprocating territory" means any country or
territory outside India which the Central Government may, by
notification in the Official Gazette, declare to be a
reciprocating territory for the purposes of this section; and
superior Courts, with reference to any such territory, means
such Courts as may be specified in the said notification.
Explanation 2.-- "Decree" with reference to a superior Court
means any decree or judgment of such Court under which a sum
of money is payable, not being a sum payable in respect of
taxes or other charges of a like nature or in respect of a fine or
other penalty, but shall in no case include an arbitration award,
even if such an award is enforceable as a decree or judgment.

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10. Lok Adalat Lok Adalat, is loosely translated as “peoples’ court”. It is set up
under the Legal Services Authority Act, 1987 and may be
organised at such intervals and places and for exercising such
jurisdiction and for such areas as deemed fit.
The procedure is consensual–and is a form of ADR used in India
and litigating parties may be referred by a court to the Lok Adalat
where the court believes that there is some chance of settlement.
Lok Adalat is mandated to act with utmost expedition to arrive at
a compromise or settlement between the parties and shall be
guided by the principles of justice, equity, fair play and other legal
principles. A compromise or settlement recorded by the Lok
Adalat being their award is deemed to be a decree of a civil court.
Failing settlement, the parties continue to litigate.

11. Notice of An interim application for injunction, appointment of receiver,

Motion attachment/arrest before judgement and other ad-
interim/interim reliefs in a suit, appeal, or any other proceedings.

12. O cial An officer appointed by the High Court / NCLT as the custodian of
Liquidator assets of a company under liquidation. The liquidator takes
charge of the assets and liabilities and disburses the amount to
the creditors and claimants as per the orders of the High Court.

13. O cial Officer appointed by the High Court as the custodian of the assets
Assignee of an insolvent for disposing them and distributing pro-rata share
as per the directions of the Court.

14. Ordinary/ Original jurisdiction is the right to hear a case for the first time as
Appellate opposed to appellate jurisdiction, where a court has the right to
Jurisdiction sit in appeal over the decision of a previous, lower-court.

15. Originating The executors / administrators of a deceased person; the trustees

Summons of a trust and any person interested in the relief sought as
creditor, devisee, legatee, heir, or legal representative, or as the
beneficiary of the trust, may apply for issue of an originating
summons returnable before a judge in chambers, for
determination of questions, or matters as is set out in Rule 238 of
the Bombay High Court (Original Side).

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16. Prothonotary & Administrative Head of the Original Side of the High Court. Also
Senior Master discharges certain quasi-judicial functions in terms of the High
Court Rules.
Registrar The Administrative Head of the Appellate Side of the High Court.

17. Rule Nisi Issued in Writ Petitions, by which one party through the Court,
calls upon another to show cause as to why the relief set forth in
the Writ should not be made final by the court. If no cause is
shown, the court will enter an order rendering "absolute" (i.e.
final) the relief, thereby requiring whatever was sought to be
accomplished by the relief.

18. Securities & SEBI, constituted under the Securities & Exchange Board of India
Exchange Act, 1992, is the Regulator for the Securities Market in India. SEBI
Board of has three functions rolled into one body - quasi-legislative, quasi-
India (SEBI) judicial and quasi-executive. It drafts regulations in its legislative
capacity, it conducts investigation and enforcement action in its
executive function and it passes rulings and orders in its judicial
capacity. An appeal from an order of SEBI lies to the SAT and a
second appeal from the SAT lies directly with the Supreme Court.
The Union Cabinet has approved the proposal for the creation of
the post of Technical Member in the SAT, Mumbai. Creation of this
post will assist in having an additional bench in SAT, Mumbai.

19. Specified Specified value in relation to a commercial dispute, means the

Value value of the subject-matter in respect of a suit as determined (in
accordance with Section 12 of the Commercial Courts Act), which
shall not be less than INR 0.3 million (earlier INR 10 million), or
such higher value, as may be notified by the Central Government.
Section 2 (i) of the Commercial Courts Act provides:
(i) - ”Specified Value” , in relation to a commercial dispute, shall
mean the value of the subject-matter in respect of a suit as
determined in accordance with section 12 which shall not be less

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than three lakh rupees or such higher value, as may be notified by

the Central Government.
Section 12 provides:
(1) The Specified Value of the subject-matter of the commercial
dispute in a suit, appeal or application shall be determined in the
following manner:--
(a) where the relief sought in a suit or application is for recovery
of money, the money sought to be recovered in the suit or
application inclusive of interest, if any,
computed up to the date of filing of the suit or application, as the
case may be, shall be taken into account for determining such
Specified Value;
(b) where the relief sought in a suit, appeal or application relates
to movable property or to a right therein, the market value of the
movable property as on the date
of filing of the suit, appeal or application, as the case may be,
shall be taken into account for determining such Specified Value;
(c) where the relief sought in a suit, appeal or application relates
to immovable property or to a right therein, the market value of
the immovable property, as on the date of filing of the suit, appeal
or application, as the case may be, shall be taken into
account for determining Specified Value ; 1[and]
(d) where the relief sought in a suit, appeal or application relates
to any other intangible right, the market value of the said rights
as estimated by the plaintiff shall be taken into account for
determining Specified Value; 2[***]
3[***]
(2) The aggregate value of the claim and counterclaim, if any as
set out in the statement of claim and the counterclaim, if any, in
an arbitration of a commercial dispute shall be the basis for
determining whether such arbitration is subject to the
jurisdiction of a Commercial Division, Commercial Appellate
Division or Commercial Court, as the case may be.
(3) No appeal or civil revision application under section 115 of the
Code of Civil Procedure, 1908 (5 of 1908), as the case may be, shall
lie from an order of a Commercial Division or Commercial Court
finding that it has jurisdiction to hear a commercial dispute under
this Act.

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20. Summary 1. Courts and classes of suits to which the Order is to apply:
Procedure (1) This Order shall apply to the following Court, namely:-
(Order 37, CPC) (a) High Courts, City Civil Courts and Courts of Small Causes; and
Regular
(b) other Courts;
civil suits
Provided that in respect of the Courts referred to in clause (b), the
High Court may, by notification in the Official Gazette, restrict the
operation of this Order only to such categories of suits as it
deems proper and may also, from time to time, as the
circumstances of the case may require, by subsequent
notification in the Official Gazette, further restrict, enlarge, or
vary, the categories of suits to be brought under the operation of
this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1) the Order applies to the
following classes of suits, namely:-
(a) suits upon bills of exchange, hundies and promissory notes;
(b) suits in which the plaintiff seeks only to recover a debt, or
liquidated demand in money payable by the defendant, with, or
without interest, arising,-
(i) on a written contract, or
(ii) on an enactment, where the sum sought to be recovered is a
fixed sum of money, or in the nature of a debt other than a
penalty; or
(iii) on a guarantee, where the claim against the principal is in
respect of a debt, or liquidated demand only.

2. Institution of summary suits

(1) A suit, to which this Order applies, may, if the plaintiff desires
to proceed hereunder, be instituted by presenting a plaint which
shall contain,-
(a) a specific averment to the effect that the suit is filed under
this Order;
(b) that no relief, which does not fall within the ambit of this rule,
has been claimed in the plaint;
(c) the following inscription, immediately below the number of
the suit in the title of the suit, namely:-
“(Under Order XXXVII of the Code of Civil Procedure, 1907)."
(2) The summons of the suit shall be in Form No. 4 in Appendix B,
or in such other form as may, from time to time, be prescribed.

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(3) The defendant shall not defend the suit referred to in sub-rule
(1) unless he enters an appearance and in default of his entering
an appearance the allegations in the plaint shall be deemed to be
admitted and the plaintiff shall be entitled to a decree for any
sum, not exceeding the sum mentioned in the summons, together
with interest at the rate specified, if any, up to the date of the
decree and such sum for costs as may be determined by the High
Court from time to time by rules made in that behalf and such
decree may be executed forthwith.

3. Procedure for the appearance of defendant

(1) In a suit to which this Order applies, the plaintiff shall,
together with the summons under rule 2, serve on the defendant
a copy of the plaint and annexure thereto and the defendant may,
at any time within ten days of such service, enter an appearance
either in person, or by pleader and, in either case, he shall file in
Court an address for service of notices on him.
(2) Unless otherwise ordered, all summons, notices and other
judicial processes required to be served on the defendant, shall
deemed to have been duly served on him if they are left at the
address given by him for such service.
(3) On the day of entering the appearance, notice of such
appearance shall be given by the defendant to the plaintiffs
pleader, or, if the plaintiff sues in person, to the plaintiff himself,
either by notice delivered at, or sent by pre-said letter directed to
the address of the plaintiffs pleader, or of the plaintiff, as the case
may be.
(4) If the defendant enters an appearance, the plaintiff shall
thereafter serve on the defendant a summons for judgment in
Form No. 4A in Appendix B for such other Form as may be
prescribed from time to time, returnable not less than 10 days
from the date of service supported by an affidavit verifying the
cause of action and the amount claimed and stating that in his
belief there is no defence to the suit.
(5) The defendant may, at any time within ten days from service of
such summons for judgment, by affidavit, or otherwise disclosing
such facts as may be deemed sufficient to entitle him to defend,
apply on such summons for leave to defend such suit and leave to
defend may be granted to him unconditionally, or upon such
terms as may appear to the Court, or Judge to be just:

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Provided that leave to defend shall not be refused unless the

Court is satisfied that the facts disclosed by the defendant do not
indicate that he has a substantial defence to raise, or that the
defence intended to be put up by the defendant is frivolous, or
vexatious:
Provided further that, where a part of the amount claimed by the
plaintiff is admitted by the defendant to be due from him, leave to
defend the suit shall not be granted unless the amount so
admitted to be due is deposited by the defendant in Court.
(6) At the hearing of such summons for judgment,-
(a) if the defendant has not applied for leave to defend, or if such
application has been made and is refused, the plaintiff shall be
entitled to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole, or any
part of the claim, the Court, or Judge may direct him to give such
security and within such time as may be fixed by the Court, or
Judge and that on failure to give such security with the time
specified by the Court, or Judge, or to carry out such other
directions as may have been given by the Court, or judge, the
plaintiff shall be entitled to judgment forthwith.
(7) The Court, or Judge may, for sufficient cause shown by the
defendant, execute the delay of the defendant in entering an
appearance, or in applying for leave to defend the suit.

21. Summary Order 13-A has been inserted by the Commercial Courts Act, 2015,
judgment to deal with summary judgment.
(Order 13-A, SUMMARY JUDGMENT
CPC) 1. Scope of and classes of suits to which this Order applies.—(1)
Commercial This Order sets out the procedure by which Courts may decide a
court claim pertaining to any Commercial Dispute without recording
oral evidence.
(2) For the purposes of this Order, the word claim shall include—
(a) part of a claim;
(b) any particular question on which the claim (whether in whole
or in part) depends; or
(c) a counterclaim, as the case may be.
(3) Notwithstanding anything to the contrary, an application for
summary judgment under this Order shall not be made in a suit in
respect of any Commercial Dispute that is originally filed as a
summary suit under Order XXXVII.

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2. Stage for application for summary judgment.—An applicant

may apply for summary judgment at any time after summons has
been served on the defendant:
Provided that, no application for summary judgment may be
made by such applicant after the Court has framed the issues in
respect of the suit.

3. Grounds for summary judgment.—The Court may give a

summary judgment against a plaintiff or defendant on a claim if it
considers that––
(a) the plaintiff has no real prospect of succeeding on the claim or
the defendant has no real prospect of successfully defending the
claim, as the case may be; and
(b) there is no other compelling reason why the claim should not
be disposed of before recording of oral evidence.

4. Procedure.—(1) An application for summary judgment to a

Court shall, in addition to any other matters the applicant may
deem relevant, include the matters set forth in sub-clauses (a) to
(f) mentioned hereunder:—
(a) the application must contain a statement that it is an
application for summary judgment made under this Order;
(b) the application must precisely disclose all material facts and
identify the point of law, if any;
(c) in the event the applicant seeks to rely upon any documentary
evidence, the applicant must,––
(i) include such documentary evidence in its application, and 16
(ii) identify the relevant content of such documentary evidence
on which the applicant relies;
(d) the application must state the reason why there are no real
prospects of succeeding on the claim or defending the claim, as
the case may be;
(e) the application must state what relief the applicant is seeking
and briefly state the grounds for seeking such relief.
(2) Where a hearing for summary judgment is fixed, the
respondent must be given at least thirty days‘ notice of:—
(a) the date fixed for the hearing; and
(b) the claim that is proposed to be decided by the Court at such
hearing.

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(3) The respondent may, within thirty days of the receipt of notice
of application of summary judgment or notice of hearing
(whichever is earlier), file a reply addressing the matters set forth
in clauses (a) to (f) mentioned hereunder in addition to any other
matters that the respondent may deem relevant:—
(a) the reply must precisely––
(i) disclose all material facts;
(ii) identify the point of law, if any; and
(iii) state the reasons why the relief sought by the applicant
should not be granted;
(b) in the event the respondent seeks to rely upon any
documentary evidence in its reply, the respondent must—
(i) include such documentary evidence in its reply; and
(ii) identify the relevant content of such documentary evidence
on which the respondent relies;
(c) the reply must state the reason why there are real prospects of
succeeding on the claim or defending the claim, as the case may
be;
(d) the reply must concisely state the issues that should be
framed for trial;
(e) the reply must identify what further evidence shall be brought
on record at trial that could not be brought on record at the stage
of summary judgment; and
(f) the reply must state why, in light of the evidence or material on
record if any, the Court should not proceed to summary judgment.

5. Evidence for hearing of summary judgment.—(1)

Notwithstanding anything in this Order, if the respondent in an
application for summary judgment wishes to rely on additional
documentary evidence during the hearing, the respondent
must:—
(a) file such documentary evidence; and
(b) serve copies of such documentary evidence on every other
party to the application at least fifteen days prior to the date of
the hearing.
(2) Notwithstanding anything in this Order, if the applicant for
summary judgment wishes to rely on documentary evidence in
reply to the defendant‘s documentary evidence, the applicant
must:—

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(a) file such documentary evidence in reply; and

(b) serve a copy of such documentary evidence on the respondent
at least five days prior to the date of the hearing.
(3) Notwithstanding anything to the contrary, sub-rules (1) and (2)
shall not require documentary evidence to be:—
(a) filed if such documentary evidence has already been filed; or
17
(b) served on a party on whom it has already been served.

6. Orders that may be made by Court.—(1) On an application made

under this Order, the Court may make such orders that it may
deem fit in its discretion including the following:—
(a) judgment on the claim;
(b) conditional order in accordance with Rule 7 mentioned
hereunder;
(c) dismissing the application;
(d) dismissing part of the claim and a judgment on part of the
claim that is not dismissed;
(e) striking out the pleadings (whether in whole or in part); or
(f) further directions to proceed for case management under
Order XVA.
(2) Where the Court makes any of the orders as set forth in sub-
rule (1) (a) to (f), the Court shall record its reasons for making such
order.

7. Conditional order.—(1) Where it appears to the Court that it is

possible that a claim or defence may succeed but it is improbable
that it shall do so, the Court may make a conditional order as set
forth in Rule 6 (1) (b).
(2) Where the Court makes a conditional order, it may:—
(a) make it subject to all or any of the following conditions:—
(i) require a party to deposit a sum of money in the Court;
(ii) require a party to take a specified step in relation to the claim
or defence, as the case may be;
(iii) require a party, as the case may be, to give such security or
provide such surety for restitution of costs as the Court deems fit
and proper;

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(iv) impose such other conditions, including providing security for

restitution of losses that any party is likely to suffer during the
pendency of the suit, as the Court may deem fit in its discretion;
and
(b) specify the consequences of the failure to comply with the
conditional order, including passing a judgment against the party
that have not complied with the conditional order.

8. Power to impose costs.—The Court may make an order for

payment of costs in an application for summary judgment in
accordance with the provisions of sections 35 and 35A of the
Code.

Note: Order 13-A provides however, that an application for

summary judgment under shall not be made in a suit in respect of
any Commercial Dispute that is originally filed as a summary suit
under Order 37.

22. Writ of A Summons issued in prescribed form by the court calling upon
Summons the defendant to enter appearance and file its written statement
of defence within the stipulated time.

23. Writ Under the Indian Constitution, the Supreme Court and High
Jurisdiction Courts can issue writs for the enforcement of fundamental rights,
administrative action and judicial or quasi-judicial action.

24. Vakalatnama Letter of appointment issued by a party to a legal proceeding,

appointing an advocate, or a firm of advocates to act, appear and
plead on its behalf in such proceeding.

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Notes

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Notes

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Contributors

Shaneen Parikh
Partner (Head – International Arbitration)

Namita Shetty
Partner

Mohit Prabhu
Principal Associate

Akhil Mahesh
Principal Associate

Purav Shah
Principal Associate

Tushar Karkaria
Associate

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