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Civil litigation

[Litigation ADR Questionnaire – India]
CIVIL LITIGATION
accompanied by an outline setting out the entire 1. In what language(s) may court proceedings be
conducted? What arrangements can be made for
Pre-action measures may be in the nature of a translation/interpreter services?
request to court for grant of temporary injunctions in the following cases: The Indian Constitution mandates that all proceedings in the Supreme Court of India, in every  if any property in dispute in a suit is in danger of High Court as well as all authoritative texts, being wasted, damaged or alienated by any party ordinances, bills or amendments, orders, rules, to the suit, or wrongfully sold in execution of a regulations and byelaws issued under the Constitution or under any Central or State law shall  the delinquent party threatens, or intends, to be in English. However, the Indian Parliament is remove or dispose of his property with a view competent to prescribe, by legislation, any other to defrauding his creditors; or language for the said purposes.  the delinquent party threatens to dispossess the applying party or otherwise cause injury to the It is relevant that Hindi has been adopted as the applying party in relation to any property in official language of the Union of India. Additionally, dispute in the civil proceeding. the Indian Constitution recognizes 21 other languages as being available to the state for On such an application being made by a party, the adoption as a language for official purposes. Some court may, by order, grant a temporary injunction to Indian States have prescribed, in addition to English, restrain such acts. Hindi or another regional/vernacular language for use in court proceedings. As a matter of practice, it Conversely, a party anticipating a civil action against is not infrequent to witness the use of Hindi or itself may file a caveat application which would regional/vernacular languages, in addition to English, entitle the filing party to a hearing before any orders at the District Court level and lower judiciary by or directions are passed or issued against the filing virtue of their wide-spread prevalence and use in the State concerned. As a precursor to litigation, a party may call upon the Notably, no document in a language, other than other party for negotiations and discussions with a English, can be filed in the Supreme Court unless it is view to resolve the dispute amicably. This, however, accompanied by a translation agreed to by both is not mandatory, except where the parties have parties or certified to be a true translation by a agreed to an arbitration or conciliation clause in translator appointed by the Supreme Court or advance. Depending on the nature of action/cause translated by a translator appointed or approved by of action in question, Indian civil laws and courts the Supreme Court. A party may either privately encourage parties to explore amicable settlement arrange for translation/interpreter services at its and resolution of civil disputes by resorting to own expense or file an application in court for institutional or ad hoc arbitration, mediation, appointment and approval of a translator or conciliation and Lok Adalats. interpreter. Generally, however, the arrangements for costs of translation is borne by the party relying With the exception of such cases where the parties on those services. have contracted to refer their disputes and differences to arbitration or cases involving the state 2. What types of pre-action measures are available
or state instrumentalities, it is not mandatory to and what are their limitations? Must you send a
issue a warning letter prior to the institution of warning letter before issuing any proceedings?
A party is entitled, in appropriate cases, to request 3. What are the costs of civil and commercial
the court at the beginning of a civil proceeding, for proceedings? Who bears the costs?
grant of urgent measures of interim (even ex parte) protection, pending a detailed inquiry into the civil Court fees and attorney fees constitute the principal suit. However, such a request should be cost. The level of court fees to be paid in respect of a particular civil or commercial proceeding is [Litigation ADR Questionnaire – India]
stipulated under special legislation that regulates court fees. They may be fixed or scaled on an ad In addition to the above, a court is empowered, at valorem basis. For example, court fees are any time during the pendency of any civil computed on an ad valorem basis in actions for proceedings, to order, where it deems appropriate, money, maintenance, movable and immovable production of any document in the possession or property, enforcing a right of pre-emption and power of any party to such proceedings. mesne profits. 5. What is the process for witness evidence (namely,
There is legislation prescribing guidelines for is it deposition based in advance, or witness
attorney fees; however, in practice, attorney fees statement, or examination or cross-examination)?
are largely a matter of agreement between the client Can a witness be compelled to attend to give
and attorney concerned. evidence?
At the stage of filing, costs are invariably borne by A list of witnesses should be filed by the parties in the party concerned. However, a party succeeding court at the time of settlement of issues. in a civil litigation is awarded costs at the time of drawing up of a decree. While such costs generally The witness provides an affidavit of evidence and it include costs towards court fees, they do not always is then open to the opposite party to cross-examine reflect attorney fees that may have been incurred by the witness with reference to the written deposition. a succeeding party. The cross-examination is conducted orally in the court but is immediately transcribed and signed by The Code of Civil Procedure, 1908, decreed that the the concerned witness. costs of all civil suits shall be in the discretion of the court, and the court shall have full power to It is also open to a party in a civil proceeding to determine by whom or out of what property and to request the court to summon a particular witness what extent such costs are to be paid, and to give all with a view to obtaining the deposition of such necessary directions for the purposes aforesaid. witness or to cross-examine such witness. 4. What are the basic rules of disclosure of documents
A party to a civil proceeding may also deliver written in civil and commercial proceedings? Which
evidence, with the court's permission, for documents do not require disclosure? Is electronic
examination by the opposite parties. disclosure of documents normal?
Upon a person being summoned by a court as a A party suing upon or relying upon a document in its witness in a civil proceeding, it is imperative that the possession or power in support of its claim is witness attends to give evidence. Deliberate required to produce and file such documents in omission or failure on part of a summoned witness court at the time the party's claim. Similarly, where to attend the court entitles the court to impose fines a party relies upon any document in its possession or and to order the property of such a witness to be power in support of its defence to a claim or for a attached and sold. counter claim, such party is required to produce and file such documents in court at the time of initiating 6. How are settlement discussions usually conducted
(namely whether oral or written and whether
As regards documents in the possession, power, representatives)? Is the settlement correspondence
custody or control of the opposite party in a civil or between the parties/counsel privileged (i.e.: may
commercial proceeding, a party seeking to place not be disclosed to the court)?
reliance on such documents in support of its claim or defence is entitled to issue a notice to produce such Under the present Indian civil law regime, parties are documents which are in the possession, power, custody or control of the opposite party. A party in a conciliation/mediation/settlement even during the civil or commercial proceeding may also file an pendency of a civil proceeding. Except in cases of application for discovery and inspection of judicial settlement, including settlement through the documents or for summoning of documents through system of Lok Adalats (which is governed by the Legal Services Authority Act, 1987), settlement [Litigation ADR Questionnaire – India]
discussions may be conducted in any form or What is the procedure for mediation? Is it a
manner agreeable to the parties and/or their popular method for resolving commercial
respective counsels. disputes?
Settlement correspondence exchanged between the There is no statutory prescribed rule or parties and/or their respective counsels, are procedure governing mediation and the parties generally and, as a rule of practice, undertaken on a are left to adopt and design their own form and without prejudice basis, and where the parties have procedure in this regard. There are instances, so declared or agreed, are regarded as privileged however, where High Courts in India have and confidential (i.e. may not be disclosed to the established mediation cells associated with the High Court. Where such mediation cells have been set up, the High Courts have also 7. How can foreign judgments be enforced?
formulated mediation rules governing the procedure of mediation. Broadly, mediation is A party relying upon a foreign judgment of countries conducted on principles of confidentiality, with which India has an existing reciprocal fairness, impartiality, objectivity and justice. arrangement (within the meaning and purview of Section 44-A of the Code of Civil Procedure, 1908, by Historically, mediation is not seen as a popular way of a notified treaty or agreement) is entitled to method for the resolution of commercial directly file proceedings for execution of such judgment in a court of competent jurisdiction in India. Judgments of reciprocating territories are, arbitration
commercial
contracts binding and enforceable?
enforceable as decrees in India. Yes, arbitration clauses in commercial contracts However, as regards a party relying upon a foreign are regarded as binding and enforceable under judgment of a country with which India does not Indian laws. Arbitration clauses in commercial have any existing reciprocal arrangement within the contracts are regarded as independent meaning and purview of Section 44-A of the Code of agreements and have been held to survive even Civil Procedure, 1908, a party relying upon such if the commercial contract itself is found to be foreign judgment is not entitled to directly file void. By virtue of Section 8 of the Arbitration & execution of such judgment in India but is required Conciliation Act, 1996, arbitration clauses in to file its claim (to which the foreign judgment commercial contracts may operate as a bar to pertained) afresh in a court of competent civil action in respect of disputes and jurisdiction in India. In such proceedings, the foreign differences arising under the commercial judgment may be relied upon by the claiming party contract in question. as a piece of evidence. It is only upon succeeding in such claim before the Indian courts that the party What type of arbitration is commonly used for
may seek enforcement of its claim, to the extent resolving commercial disputes: ad hoc
decreed by the Indian court, by filing execution arbitration or institutional arbitration?
proceedings in respect thereof. While ad hoc arbitration has been more ARBITRATION
commonly used over the years, contracting parties are now tending towards agreeing to Are mediation clauses in commercial contracts
institutional arbitration. binding and enforceable?
Which arbitration institutes are most popular?
Mediation clauses in commercial contracts have been held to be binding and enforceable In the case of international commercial in India. Where contractually prescribed, resort arbitration, it is not uncommon for parties to to mediation would be regarded as a pre- refer disputes to the International Chamber of requisite before an action in civil courts may be Commerce, London Court of International Arbitration or the Singapore International Arbitration Centre. [Litigation ADR Questionnaire – India]
institution, fails to perform any function Some of the popular arbitration institutes in entrusted to him of it under that procedure, a India are the Indian Council of Arbitration, party may request the Chief Justice – or any Chambers of Commerce (organized by either person or institution designated by him – to region or trade), Federation of Indian Chamber take the necessary measure, unless the of Commerce and Industry ("FICCI") Arbitration
agreement on the appointment procedure and Conciliation Tribunal, Indian Institute of provides other means for securing the Arbitration and Mediation, International Centre for Alternate Dispute Resolution ("ICADR"), and
the Delhi High Court Arbitration Centres set up In what language is an arbitration proceedings
and established under the aegis of the Delhi conducted?
Under the arbitration laws of India, parties are What influence can the parties have on the
at liberty to agree on a language in which identity of the arbitrator(s)?
arbitration proceedings may be conducted. Failing such agreement, the arbitral tribunal is Under Section 10 and 11 of the Arbitration & entitled to determine the language or Conciliation Act, 1996, the parties have been languages to be used in the arbitral accorded the freedom to determine the number of arbitrators (not an even number) and procedure for appointing the arbitrator or The agreement or determination, unless otherwise specified, shall apply to any written statement by a party, any hearing and any Failing such agreement as to procedure for appointment, in arbitration with three communication by the arbitral tribunal. The arbitrators, each party is entitled to appoint one arbitrator and the two appointed documentary evidence shall be accompanied arbitrators are required to appoint the third by a translation into the languages agreed upon arbitrator who shall act as the presiding by the parties or determined by the arbitral immediately preceding appointment procedure applies and a party fails to appoint an arbitrator What types of pre-arbitration measures are
within 30 days from the receipt of a request to available and what are their limitations?
do so from the other party or (b) the two appointed arbitrators failed to agree on the Under the Arbitration and Conciliation Act, third arbitrator within 30 days from the date of 1996 ("Arbitration Act"), a party is entitled, their appointment, the appointment shall be before arbitral proceedings have commenced, made, upon a request of a party, by the Chief to apply to a court for an interim measure or protection in respect of any of the following In an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within  the preservation, interim custody or sale of thirty days from receipt of a request by one any goods which are the subject-matter of party from the other party to so agree, the the arbitration agreement; appointment shall be made, upon request of a  securing the amount in dispute in the party, by the Chief Justice or any person or institution designated by him  the detention, preservation or inspection of any property or thing which is the subject- Where, under an appointment procedure matter of the dispute in arbitration, or as to agreed upon by the parties, a party fails to act which any question may arise therein and as required under that procedure, or the authorizing for any of the aforesaid purposes parties, or the two appointed arbitrators, fail to any person to enter upon any land or reach an agreement expected of them under building in the possession of any party, or that procedure, or a person, including an authorizing any samples to be taken or any [Litigation ADR Questionnaire – India]
observation to be made, or experiment to value of the stamp duty payable in respect of be tried, which may be necessary or an arbitral award is generally assessed on the expedient for the purpose of obtaining full basis of the quantum of the monetary claims information or evidence;  interim injunction or the appointment of a 10. What are the basic rules of document
 such other interim measure of protection as disclosure in arbitration? Which documents do
may appear to the court to be just and not require disclosure?
convenient, and the court shall have the same power for making orders as it has for While the Arbitration Act stipulates that the the purpose of, and in relation to, any Code of Civil Procedure, 1908 and the Indian proceedings before it. Evidence Act, 1872 do not apply to arbitration proceedings, in principle the rules of document While considering an application for grant of disclosure employed in arbitration proceedings such measure or protection, the court does not remain largely similar to those applied in civil undertake a detailed enquiry into the merits of the dispute but is only moved by considerations of prima facie case, balance of convenience However, it is pertinent that under the inter se the parties and irreparable injury to a Arbitration Act, parties have been accorded party affected by the grant or refusal of a freedom to determine the procedure to be measure or protection. It is relevant that the followed by the arbitral tribunal, failing which, grant or refusal to grant of such pre-arbitration the arbitral tribunal may conduct the measure by the court is appealable by the party proceedings in the manner it deems appropriate. Ordinarily, the parties are required to submit, with their statement of What are the costs of arbitration proceedings
claim or defence, as the case may be, all and who bears these costs?
documents and evidence that they consider as relevant. Alternately, the parties may add a The Arbitration Act stipulates that unless reference to the documents or other evidence otherwise agreed by the parties, the costs of that they propose to submit. arbitration shall be fixed by the arbitral tribunal. Arbitral tribunals are also empowered Section 27 of the Arbitration Act entitles an arbitral tribunal, or a party with the approval of the arbitral tribunal, to apply to court for  the party entitled to costs; assistance in taking evidence. Upon receiving  the party who shall pay the costs; such a request, the court may, within its  the amount of costs or method of competence and according to its rules on determining that amount; and taking evidence, execute the request or  the manner in which the costs shall be paid. ordering that the evidence be provided directly to the arbitral tribunal. The court may, while Such costs signify reasonable costs relating to: making or order as above, issue the same processes to witnesses as it may issue in suits  the fees and expenses of the arbitrators and tried before it.  legal fees and expenses; 11. What is the procedure for witness evidence in
 any administration fees of the institution arbitration (namely, is it deposition based or
supervising the arbitration; and witness examination or cross-examination)?
 any other expenses incurred in connection with the arbitral proceedings and the The Arbitration Act prescribes that the arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, Costs involved in arbitration may also include 1872. The parties are at liberty to agree on a cost of stamping of an arbitral award which is procedure to be followed by the arbitral prescribed in some jurisdictions in India. The tribunal in conducting its proceedings. Failing [Litigation ADR Questionnaire – India]
such inter partes agreement, the arbitral may be conducted in any form or manner tribunal is entitled to conduct its proceedings in agreeable to the parties and/or their respective the manner it considers appropriate and such powers includes the power to determine the admissibility, relevance, materiality and weight of any evidence. between the parties and/or their respective counsels are generally, and as a rule of practice, The provisions of the Code of Civil Procedure, undertaken on a without prejudice basis and 1908, and the Indian Evidence Act, 1872, where the parties have so declared or agreed, applicable to civil proceedings do not apply to are regarded as privileged and confidential (i.e. arbitration proceedings. Ordinarily, the may not be disclosed to the arbitrator). principles of witness evidence for arbitration proceedings remain the same with the crucial If, during arbitral proceedings, the parties are exception that it is open to the parties to agree able to settle the dispute, the arbitral tribunal to and adopt their own procedure for witness is required to terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in It is apt to note that the Arbitration Act entitles the form of an arbitral award on agreed terms. an arbitral tribunal, or a party with the An arbitral award on agreed terms is accorded approval of the arbitral tribunal, to apply to the same status and effect as any other arbitral court for assistance in taking evidence. Upon award on the substance of the dispute. receiving such a request, the court may, within its competence and according to its rules on Notably, in conciliation proceedings conducted taking evidence, execute the request or order under the Arbitration Act the conciliator and that the evidence be provided directly to the the parties are required to keep and maintain arbitral tribunal. The court may, while making confidentiality concerning all matters relating the order as above, issue the same processes to the conciliation proceedings, including any to witnesses as it may issue in suits tried before settlement agreement, except where its it. Persons failing to attend in accordance with disclosure is necessary for purposes of such a process, or making any other fault such implementation and enforcement.
as refusing to give evidence or guilty of contempt to the arbitral tribunal during the The statute also prescribes that when the conduct of arbitral proceedings, are subject to the disadvantages, penalties and punishments concerning the dispute from a party, he shall by order of the court on the representation of disclose the substance of that information to the arbitral tribunal as they would incur for the the other party in order that the other party like offences in suits tried before the court. may have the opportunity to present any explanation which he considers appropriate. 12. How are settlement discussions usually
However, when a party gives any information conducted (namely whether oral or written
to the conciliator accompanied with a specific and whether between the parties direct or
condition that it be kept confidential, the their representatives)? Is the settlement
conciliator is required not to disclose such correspondence between the parties and/or
information to the other party.
counsel privileged (i.e., may not be disclosed
to the arbitrator)?
13. Under what circumstances can an arbitration
award be enforced, challenged or annulled?
Under the present Indian civil law regime, parties are encouraged to explore or resort to An arbitral award may be enforced by a party settlement even during the pendency of a civil upon the expiry of ninety days from the date proceeding or an arbitration proceeding. on which such award was rendered. In cases Except in cases of judicial settlement, including where an arbitral award has been challenged, settlement through the system of Lok Adalats enforcement may be made after such challenge (which is governed by the Legal Services has been refused or rejected. Subject to the Authority Act, 1987), settlement discussions [Litigation ADR Questionnaire – India]
above, an arbitral award is enforceable as a decree of court. An arbitral award including a foreign award may be challenged and annulled by the court if the party challenging the same proves that:  a party was under some incapacity, or the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force;  the party challenging was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case;  the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration; or  the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with non-derogable provision of the Arbitration Act or, failing such agreement, was not in accordance with the same. A foreign award may, in addition, to the above, be challenged on the grounds that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Arbitral Awards (including foreign awards) may also be annulled where the court finds:  the subject-matter of the dispute is not capable of settlement by arbitration under the law currently in force; or  the arbitral award is in conflict with the public policy of India.

Source: http://www.legalink.ch/Root/Sites/legalink/Resources/Questionnaires/Litigation-and-Arbitration/Asia/Litigation%20ADR%20Questionnaire%20-%20India.pdf