DISPUTE RESOLUTION IN INDIA-FREQUENTLY ASKED QUESTIONS

DISPUTE RESOLUTION IN INDIA-FREQUENTLY ASKED QUESTIONS

 

1. What is the structure of the court system in respect of civil proceedings? What is the role of the judge in civil proceedings?

 

The Indian Judicial/Court System is one of the oldest legal systems in the world today. The framework of the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it. There are various levels of judiciary in India—different types of courts, each with varying powers depending on the tier and jurisdiction bestowed upon them. They form a hierarchy of importance, in line with the order of courts in which they sit, with the Supreme Court of India at the top, followed by High Courts of respective states with District Judges sitting in District Courts and Magistrates of Second Class and Civil Judge (Junior Division) and Tribunals are also set up under the jurisdiction of High Courts under the provisions of the Administrative Tribunals Act, 1985. The Supreme Court held in L. Chandra Kumar vs. UOI (1997) 3 SCC 261 that the tribunals constituted under the said Act are to act like courts of first instance.

 

Hierarchy of Courts and Judges in India:

 

a. The District Court of India are established by the State Government in India for every district or more than one district taking into account the number of cases, and population distribution in the district. These courts are under the administrative control of the High Court of the State to which the district concerned belongs. The District Court is presided over by one District Judge appointed by the State Government. In addition to the district judge there are many Additional District Judges and Assistant District Judges depending upon the workload

 

b. In every state, besides the High Court there are number of judicial Courts to administer justice. These courts function under the complete control and supervision of the High Court. A state has got exclusive Legislative competence to determine the constituent organization and territorial jurisdiction of all courts subordinate to the High Court. The organization of subordinate courts throughout the country is generally uniform. There are two type of law courts in every district; (i) Civil Courts (ii) Criminal Courts

 

c. The court of the District Judges is the highest civil court in a district. It exercises both judicial and administrative powers. It has the power of superintendence over the courts under its control. The court of the District judge is located at the district headquarters. It has power of trying both civil and criminal cases. Thus, he is designated as both the District and Sessions Judge

 

d. Below the court of the District Judge are the courts of Sub-judge, Additional Sub-Judge and Munsif Courts, which are located in the sub-divisional and district headquarters. Most of the civil cases are filed in the court of the Munsif. A case can be taken in appeal from the court of the Munsif to the court of the sub-Judge or the Additional Sub-Judge. Appeals from the courts of the sub-Judges and Additional sub-Judges shall lie in the District-Court. The Court of the District Judge has both original and appellate jurisdiction. Against the decision of the District judge an appeal shall lie in the High Court

 

e. Civil Court has been further categorized on the basis of Jurisdiction which is discussed as follows

 

i. Subject Matter Jurisdiction: It can be defined as the Authority vested in the court to try and hear cases of the particular type and pertaining to a particular subject matter

 

ii. Territorial Jurisdiction: The court can decide within the geographical limits of a court’s authority and it cannot exercise authority beyond that territorial and geographical limits

 

iii. Pecuniary Jurisdiction: Pecuniary Jurisdiction is related to money, whether a court can try cases and suits of monetary value/amount of the case or suit in question

 

iv. Appellate Jurisdiction: It refers to the authority of a court to rehear or review a case that has already been decided by a lower court. Appellate jurisdiction is generally vested in higher courts. In India, both the High Courts and the Supreme Court have appellate jurisdiction to hear matters which are brought in the form of appeal before them. They can either overrule the judgment of the lower court or uphold it.

 

e. Tribunals are established under Article 323B which empowers the Parliament and the State Legislature to set up tribunals for the adjudication of any dispute or complaint with respect to the matters specified under clause (2) of Article 323B. Judicial as well as Technical members are appointed and all decisions of the tribunal are amenable to challenge Under Articles 226/227 of the Constitution before, a division bench of the jurisdictional High Court and subsequently Supreme Court.

 

2. Are court hearings open to the public? Are court documents accessible by the public?

 

a. Court hearings are open to the public – India has an open court system till the court proceedings are converted into an ‘in-camera trail’. Where there is an open court hearing, litigants are entitled to know the progress in their case. The concept of access to justice provides that though a litigant is not in court, they are able to know what is happening in their case inside the court. Barring few exceptions like hearings in a rape case, the courts are open to the public for all hearing and the Supreme Court in order to facilitate this concept has even started to frame appropriate guidelines for allowing live streaming of the proceedings so that the citizens have the right to information and matters of constitutional and national importance can be live-streamed for awareness

 

b. Court judgments are public records but not court documents. If a case is heard by a court of India, no one can argue that the opinion should not be published and view able by all, unless the court itself expressly says it cannot be published or a law says it cannot. The decisions of the Supreme Court are the law of the land, and all citizens can read their decisions. Not just the Supreme Court, courts today are publishing their judgments and orders on the Internet. The Copyright Act s 52(1)(q)(iv) states that publication of court judgments does not constitute an infringement of copyright

 

In R. Rajagopal vs State of T.N on 7 October, 1994 where the Supreme Court defined the scope of the right to privacy, it was stated that publication of court records will not constitute any violation of the right to privacy. It was held: “The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicized in press/media”

 

3. Do all lawyers have the right to appear in court and conduct proceedings on behalf of their client?

 

If not, how is the legal profession structured?

 

A lawyer can appear in any matter on behalf of its client provided such lawyer has filed a Vakalatnama or memo for the same client before the Court of Law. A Vakalatnama or memo is a privileged document signed by the client authorizing only one lawyer or two-lawyers (in case of a firm) to represent his interest before the Hon’ble Court. In the case of Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr AIR 2006 SC 269, the Supreme Court held that Vakalatnama creates the special relationship between the lawyer and the client. It regulates and governs the extent of delegation of authority to the pleader and the terms and conditions governing such delegation. It should, therefore, be properly filled/attested/accepted with care and caution.

 

Any other lawyer will not appear in any matter where another advocate has filed a Vakalatnama or memo for the same party.In such a case, a lawyer who is not able to present the consent of the advocate who has filed the matter for the same party must apply to the court to be allowed to appear on behalf of the client. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.

 

4. Do all lawyers have the right to appear in court and conduct proceedings on behalf of their client?

 

If not, how is the legal profession structured?

 

A lawyer can appear in any matter on behalf of its client provided such lawyer has filed a Vakalatnama or memo for the same client before the Court of Law. A Vakalatnama or memo is a privileged document signed by the client authorizing only one lawyer or two-lawyers (in case of a firm) to represent his interest before the Hon’ble Court. In the case of Uday Shankar Triyar vs Ram Kalewar Prasad Singh & Anr AIR 2006 SC 269, the Supreme court held that Vakalatnama creates the special relationship between the lawyer and the client. It regulates and governs the extent of delegation of authority to the pleader and the terms and conditions governing such delegation. It should, therefore, be properly filled/attested/accepted with care and caution. Any other lawyer will not appear in any matter where another advocate has filed a Vakalatnama or memo for the same party.

 

In such a case, a lawyer who is not able to present the consent of the advocate who has filed the matter for the same party must apply to the court to be allowed to appear on behalf of the client. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.

 

5. What are the limitation periods for commencing civil claims?

 

The law relating to Law of Limitation to India is the Limitation Act 1859 and subsequently Limitation Act 1963 which was enacted on 5th of October, 1963 and which came into force from 1st of January, 1964 for the purpose of consolidating and amending the legal principles relating to limitation of suits and other legal proceedings. According to the Limitation Act 1963 s 2(j), ‘period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.

 

The Law of Limitation signifies to prevent from the last date for different legal actions which can take place against an aggrieved person and to advance the suit and seek a remedy before the court. The limitation periods for commencing civil claims in India are categorized as

 

a. The limitation period is reduced from a period of 60 years to 30 years in the case of suit by the mortgagor for the redemption or recovery of possession of the immovable property mortgaged, or in case of a mortgages for the foreclosure or suits by or on the behalf of Central Government or any State Government including the State of Jammu and Kashmir

 

b. Whereas a longer period of 12 years has been prescribed for different kinds of suits relating to immovable property, trusts and endowments, a period of 3 years has been prescribed for the suits relating to accounts, contracts and declarations, suits relating to decrees and instruments and as well as suits relating to movable property

 

c. A period varying from 1 to 3 years has been prescribed for suits relating to torts and miscellaneous matters and for suits for which no period of limitation has been provided elsewhere in the Schedule to the Act

 

d. It is to be taken as the minimum period of seven days of the Act for the appeal against the death sentence passed by the High Court or the Court of Session in the exercise of the original jurisdiction which has been raised to 30 days from the date of sentence given

 

e. The Limitation Act 1963 has a very wide range considerably to include almost all the Court proceedings. The definition of ‘application’ has been extended to include any petition, original or otherwise. The change in the language of the Limitation Act 1963 Section 2 and 5 includes all the petition and also application under special laws

 

f. The Act has been enlarged with the definition of ‘application’, ‘plaintiff’ and ‘defendant’ as to not only include a person from whom the application. The plaintiff or defendant as the case may be may also be a person whose estate is represented by an executor, administrator or other representatives

 

g. According to the Civil Procedure Code Sections 86 and 89, it requires the consent of the Central Government before suing foreign rulers, ambassadors and envoys. The Limitation Act 1963 provides that when the time obtained for obtaining such consent shall be excluded for computing the period of limitation for filing such suits

 

h. The Limitation Act 1963 with its new law signifies that it does not make any racial or class distinction since both Hindu and Muslim Laws are now available under the law of limitation as per the existing statute book. In the matter of Syndicate Bank v.Prabha D. Naik AIR [2001] SC 1968, the Supreme Court has observed that the law of limitation under the Limitation Act 1963 does make any racial or class distinction while making or indulging any law to any particular person.

 

In a recent judgement of the Supreme Court titled ‘Shakti Bhog Food Industries Ltd. V. The Central Bank of India & Anr’, the Apex Court has clarified that in cases governed by Article 113 of the Limitation Act, the period of limitation begins to run “when the right to sue accrues” and not when the right to sue ‘first’ accrues.

 

6. Are there any pre-action procedures with which the parties must comply before commencing proceedings?

 

As soon as a dispute is imminent, parties need to consider a number of factors which can be regarded as pre-action procedures:

 

a. One is to issue a forewarning to the other side by issuing a Legal Notice which specifies the cause of action, the quantum of loss if any and intimation to the other party of the alleged wrong-doing. The said Legal Notice which is usually issued through a Lawyer should carry a diligent time-line such that the other party can peruse the same and take corrective measures if any within the said period. The Notice shall also state that in case of no rebuttal from the other party, a suit shall be instituted in the Court of law

 

b. The other factor is to consider if at all, there is a reasonable cause of action because the court will strike out a claim which fails to disclose a reasonable cause of action

 

c. The party instituting civil proceedings shall also consider who the proper defendant is and whether it is worth pursuing the defendant at all by checking their financial means. If the defendant does have assets, it may be relevant if these are located out of the jurisdiction and if so, how easy it will be to enforce judgment against these assets

 

d. The party instituting civil proceedings may need to consider whether any emergency procedures are required before the claim is commenced, for example to restrain a party from moving assets out of the jurisdiction, or whether other pre-action procedures are necessary, such as making an application for pre-action discovery

 

e. The party instituting civil proceedings will also need to establish whether or not the claim is subject to any limitation period

 

f. The party instituting civil proceedings shall need to assess the claim amount in case of a recovery suit and accordingly enquire about the amount of the Court fee which shall be required to institute such suit in the Court of law

 

g. If the dispute emerges out of a contract between the parties, then the party instituting the civil proceedings needs to check and affirm if any specific pre-action procedure is envisaged in such contract. Usually contracts may envisage mediation or conciliation procedures which are mandatory in nature and compliance of which is necessary for any party before they start to institute such civil proceedings.

 

7. What is the typical civil procedure and timetable for the steps necessary to bring the matter to trial?

 

The typical procedure for trial of a civil case and its different stages is governed as per the provisions of the Code of Civil Procedure 1908 (“CPC”) and the Rules of the respective Courts.

 

A Civil Suit is instituted by filing of a plaint before the Civil Court of competent jurisdiction. At the outset, it is important to ascertain the cause of action, the parties against which the cause of action has arisen and the Court which is competent to hear the matter i.e. the Court where the suit will be instituted.

 

Typical stages of a Civil Suit as per the provisions of CPC are as under:

 

Institution of suit: As per the CPC, Section 26(1), a civil suit is instituted by the presentation of a plaint accompanied with an affidavit in support of the facts pleaded therein. The particulars to be contained in a plaint have to be as provided under Order 7 of CPC which states that a plaint shall contain the following:

 

i.  Name of the Court in which the suit is to be filed

ii. Name, description and place of residence of the Plaintiff

iii. Name, description and place of residence of the Defendant so far it can be ascertained

iv. Where the Plaintiff or Defendant is a minor or person of unsound mind statement to that effect

v. Facts constituting the cause of action and when it arose

vi. Fact showing that the Court has jurisdiction

vii. Relief which the Plaintiff claims

viii. Where Plaintiff has allowed a set off or relinquishes a portion of his claim, the amount so allowed for relinquishment; and

ix. Statement of the value of the subject matter of the suit for purpose of jurisdiction and Court fees

 

The plaint has to be filed with all relevant evidences and documents in support of the claim. It is also important to ensure that the plaint is filed within the statutory period of limitation as applicable, failing which an application seeking an extension of time shall be required to be filed along with the plaint.

 

1. First hearing/ Admission of case: After filing of the plaint, the case shall be listed for first hearing before the Court. The Plaintiff will typically be required to provide an overview of the case and satisfy the Court that a cause of action exists against the Defendant. If the Court is satisfied, it admits the case and issues summon/ notice u/s 27 read with Order V of the CPC to the Defendant to appear and answer the claim. It is important to note that if the Plaintiff fails to appear on the first date of hearing, then the Court may dismiss the suit in default

 

2. Service of Summons: Once the summons has been issued by the Court, it will be served by the Court on the address of the Defendant provided by the Plaintiff. It is incumbent upon the Plaintiff to ensure that the address provided to the Court is correct so that the summons is duly served upon the Defendant. The Plaintiff may also seek permission from the Court under Order V R 9A to effect service of the summons upon the Defendant on its own to further ensure that the Defendant is duly served

 

In case the address of the Defendant is not traceable, and the Court and the Plaintiff are unable to effect service of summons upon the Defendant after using all reasonable diligence, the Plaintiff may apply to the Court seeking permission to effect service by way of a publication as per Ord. V R 17 and R 20 of the CPC. The service of summon/notice upon the Defendant is presumed to effectuated by way of such publication and in case the Defendant still does not enters appearance in the case, the suit is proceeded ex-parte.

 

d. Appearance of Parties: On the day specified by the Court in the summons, the Defendant is required to enter its appearance and file its reply to the plaint and in circumstances where the reply is not filed, request the Court to grant it more time to file the reply. In case if the summons/ notices have been duly served upon the Defendant and the Defendant still fails to enter appearance, the Court may either grant another opportunity to the Defendant to enter appearance and re-issue summons or proceed ex-parte against the Defendant noting that it has failed to appear despite reasonable opportunity and thus, closing its right to defend

 

e. Filing of Reply by the Defendant: – After service of summons to the Defendant, as per Order VIII R 1 of the CPC, the Defendant is required to file its reply (termed as Written Statement) within 90 days from the date of service of the summons on him.

 

In the matter of ‘Sreevivas Basudev V. Vineet Kumar Kothari’, the High Court of Gauhati held that every summon should be accompanied with a complete copy of the plaint. A mere service of the summons not accompanied by a copy of the plaint would not make the prescribed period of 90 days running.

 

However, the Defendant may seek extension of time for filing of its reply and such extension may be granted by the Court at its discretion

 

f. Production of Documents: – After filing of the written statement by the Defendant, the next stage of the suit is production of documents. At this stage both parties are required to file the documents in Court which are in their possession or power. If the parties rely on some documents which are not in their possession, they have to apply to the Court for issue of summons to the authority or the persons in whose possession those documents are

 

g. Examination of parties by the Court (Order X): At the first hearing of the suit after filing of the written statement by the Defendant, the Court shall ascertain from each party whether it admits or denies such allegations of fact as are made in the plaint or the written statement. Such admissions and denials shall be recorded. After such recording, the Court shall direct the parties to the suit to opt for one of the following modes of settlement outside the Court

 

  1. Arbitration
    ii. Conciliation
    iii. Judicial settlement including settlement through Lok Adalat or
    iv. Mediation
  2. Discovery and Inspection (Order XI): The purpose of discovery and inspection of document and facts is to enable the parties to ascertain the facts to be proved. With the leave of the Court the Plaintiff or Defendant may deliver interrogatories in writing for examination of opposing parties which are required to be answered and which are related to the matter
  3. Admission and denial of documents (Order XII): Either party may by giving notice, call upon the other party to admit within seven days from the date of service of the notice, all documents saving just exceptions and each party shall submit a statement of admissions or

 

Denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court. The statement of admissions and denials shall set out explicitly, whether such party was admitting or denying

 

  1. correctness of contents of a document
    ii. existence of a document
    iii. execution of a document
    iv. issuance or receipt of a document
    v. custody of a document

 

An Affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement. In the event that the Court holds that any party has unduly refused to admit a document under any of the above criteria, costs (including exemplary costs) for deciding on admissibility of a document may be imposed by the Court on such party. The Court may pass orders with respect to admitted documents including for waiver of further proof thereon or rejection of any documents.

 

  1. Framing of Issues (Order XIV): The next stage is framing issues. Based on the questions of law arising and the admission-denial of the facts, the issues are framed by the Court in accordance with the provisions of the CPC Ord. XIV R 1 as under
    I. Rule 1 sub rule (1) states, “Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other”
    ii. Sub rule (2) states, “Material propositions are those propositions of law or fact which a Plaintiff must allege in order to show a right to sue or a Defendant must allege in order to constitute his defence”
    iii. Sub rule (3) States “Each material proposition affirmed by one party denied by other shall form subject of distinct issues”
    • Issues of fact
    • Issues of law
    The suit moves for trial after framing of issues
  2. k. Summoning and Attendance of Witnesses (Order XVI): On the date appointed by the Court and not later than 15 days after the date on which issues are settled parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents
    l. Hearing of suit and examination of Witnesses (Order XVIII): The Plaintiff is entitled to have the first right to begin unless the Defendant admits the facts alleged by the Plaintiff and contends that either in point of law or on some additional facts alleged by the Defendant, the Plaintiff is not entitled to any part of relief. In such case Defendant has the right to begin
    The Plaintiff has to state his case and submit the evidence filed and marked before the Court. If any evidence was not marked earlier then the same shall not be considered by the Court. The Plaintiff shall carry out examination in chief of its witnesses followed by cross-examination of the witnesses by the Defendant.

 

The same procedure is followed for the Defendant’s witnesses.

 

m. Arguments: After completion of evidence, final arguments are submitted by both the arties
n. Judgment (Order XX): Judgment is defined as the statement given by the judge on the grounds of which a decree is passed. The Court after the case has been heard shall pronounce judgment in open Court either within one month of completion of arguments or as soon thereafter as may be practicable, and when the judgment is to be pronounced the Judge shall fix a day in advance for that purpose.

 

 8. Are parties required to disclose relevant documents to other parties and the court?

 

Yes, parties to the suit are required to voluntarily disclose all relevant documents relied upon to the Court and the other parties along with their pleadings. In case the Court or any of the other parties object that any relevant document has not been disclosed by the other party, it may move an application before to Court for discovery and inspection of said documents under the CPC 1908, s. 30 read with Ord. XI. [See, Rajesh Bhatia & Ors. v. G. Parimala & Anr. 2006 (3) ALD 415 Andhra HC]. Notwithstanding the same, privileged documents may be exempted from compulsory disclosure of documents and information. [See, State of Punjab v. Sodhi Sukhdev Singh 1961 AIR 493].

 

  1. Under the CPC 1908, s 30, the Court may at any time either on its own motion or on the application of any party make such order as may be necessary or reasonable in all matters relating production of documents, and it may also issue summons to persons whose attendance is required to produce documents.
  2. Under Order VII R. 14, where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce and file a copy of the documents in Court when the plaint is presented by him.
    A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
  3. Under Order VIII R 1A, where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce and file the documents in Court when the written statement is presented by him. A document which ought to be produced in Court by the defendant under this Rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
  4. After the plaint has been presented by the Plaintiff and the written statement by the Defendant in Court, if it appears to the plaintiff or the defendant that all material facts constituting the case of opposite party and all documents in his possession have not been disclosed, it may move an application before the Court seeking directions against the other party to disclose such documents. This is known as discovery of documents.
  5. The process of the discovery of documents operates generally in three successive stages, namely

 

i.The disclosure in writing by one party to the other of all the documents which he has or has had in his possession, custody or power relating to matters in question in the proceedings;

 

  1. The inspection of the documents disclosed, other than those for which privilege from or other objection to production is properly claimed or raised; and
    iii. The production of the documents disclosed either for inspection by the opposite party or to the court.

 

The aforesaid criterion was retreated by Delhi High Court in Delhi State Industrial & Infrastructural Development Corp. Ltd. & Anr v. Shiv Kumar 2013 SCCOnline Del 3773.

 

  1. A party may seek the assistance of the Court for causing production of the document by his adversary or he may independently issue a notice to his adversary requiring production of documents under Order XI r16 CPC.
    The Hon’ble Apex Court in the case of Sasanagouda v. S.B. Amarkhed AIR 1992 SC 1163 held that the Court is very well empowered to direct any of the parties to produce all such documents which are material to the issue at hand. The Hon’ble Court in para 7 of the judgment held as under:
    “The Court, therefore, is clearly empowered and it shall be lawful for it to order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question. The Court also has been given power to deal with the documents when produced in such manner as shall appear just. Therefore, the power to order production of documents is coupled with discretion to examine the expediency, justness and the relevancy of the documents to the matter in question. These are relevant considerations, which the Court shall have to advert to and weigh before deciding to summoning the documents in possession of the party to the election petition.”

 

However, a discovery application may be considered non-maintainable on account of being made at a belated stage. [See, Samir Sen v Rita Ghosh 2018 SCC OnLine Jhar 1198]

 

  1. Further, provisions regarding inspection of documents are divided in two categories by virtue of CPC 1908, Rule 15 to 19 of Order XI –
  2. First one deals with documents referred to in pleadings or affidavits of parties;
  3. Second one deals with other documents in possession or power of the party but not referred to in the pleadings of the parties
    A party is entitled for inspection in regard to documents of first class only. Since privileged documents are protected from production such as public records, confidential communications and documents having exclusive evidence of parties’ title.
  4. The order of discovery is binding in nature and therefore non-compliance thereto would lead to penalties mentioned in Order XI Rule 21. [See, M.L. Sethi v. R.P. Kapoor (1972) 2 SCC 427].

 

9. Are there rules regarding privileged documents or any other rules which allow parties to not disclose certain documents?

 

a. The term “Privileged Document” has not been defined in CPC however, as per the general understanding; Privileged Documents are those which need not be disclosed to the other party, neither before nor after the commencement of the trial containing such confidential information having protection under law
b. The Hon’ble Andhra Pradesh High Court in its judgment Rajesh Bhatia & Ors. v. G. Parimala & Anr. 2006 (3) ALD 415 has provided an indicative list of grounds based on which protection can be claimed over documents considered as Privileged Documents:

 

i.  legal professional privilege,
ii. that production is contrary to public policy,
iii. that the documents in question may tend to criminate the party or his or her spouse,
iv. that the production is contrary to some statutory provision which imposes secrecy,
v. that production is contrary to some express or implied agreement between the parties,and
vi. that production would, in the circumstances of the particular case, be oppressive

 

c. A party who is directed by court to make discovery of documents and who wants to claim privilege over any of the documents has to file an affidavit under Ord. XI R 13 specifying which documents does the party object to produce i.e. the documents on which privilege is sought to be claimed and provide supporting reasons

 

d. Where privilege is claimed for any document and the other part questions the claim of privilege, the Court shall have the right to inspect the document for the purpose of deciding the validity of the claim of privilege.

 

10. Do parties exchange written evidence prior to trial or is evidence given orally? Do opponents have the right to cross examine a witness?

 

a. The parties to the suit exchange written evidence of their witnesses prior to the commencement of trial. The parties to the suit have to provide a list of witnesses they intend to testify to the Court under the CPC 1908, Ord. XVI Rule 1. The said list of witnesses, if any has to be filed in the Court by the respective parties before the commencement of the hearing of evidence. It is important to note that no party shall be entitled to produce any witness not named in the list of witnesses provided to the Court, without taking permission of the Court in writing and stating the reasons therefore. The evidence of the witness is recorded by way of an affidavit and the party conducts examination in chief of its witness. It is mandatory to supply a copy of examination- in-chief to the other party as specified under the CPC Order XVIII, R 4(1)

b. After completion of the examination in chief, the opposite party has the right to cross-examine the witness as per the CPC Order XVIII R 4(2). The cross-examination is recorded by the Court or the Commissioner, as the case may be. The party has a right to undertake re-examination after the completion of cross-examination by the other party

 

11. What are the rules that govern the appointment of experts? Is there a code of conduct for experts?

 

a. Indian Evidence Act 1872 u/s Section 45 defines experts as “When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity handwriting or finger impressions, the opinions upon these points of persons especially skilled in such foreign law, science or art or in questions as to identity of handwriting or finger impressions, are relevant facts. Such persons are called experts”

 

b. Section 45 of the Evidence Act 1872 makes the opinions of experts admissible. If the subject matter of the suit requires, any party may call a person as an expert witness on showing that the person has made a special study of the subject or has acquired a special experience therein. [See, State of H.P. v Jai Lal & Ors., (1999) 7 SCC 280] The appointment of expert may be suo moto by way of an order of the Court or if the expert witness is desired to testify by any party, then the expert is named by the said as a witness in its list of witnesses. The expert is then subject to examination in chief and cross examination in the same manner as per the procedure provided under CPC.

 

c. The Court considers the reliability of the expert witness based on his education, training, experience, memberships, affiliations, publications etc.

 

d. However, the opinion of an expert is not binding on the Court. [See, Chamkaur Singh v. Mithu Singh 2013 SCCOnline P&H 22840] As held in Titli v. Jones, AIR 1934 All 237, the function of the expert is to put before the Court his opinion based on all the materials so that the Court, although not an expert, may form its own judgment by its own observation of those materials

 

e. Like other witnesses, the expert witness is also subject to examination and cross examination in the Court.

 

The Apex Court in the case of State of Maharashtra v. Damu s/o Gopinath Shinde & Ors., AIR 2000 SC 1691 held that without examining the expert as a witness in Court, no reliance can be placed on an opinion alone. However, at the same time, the Court must be cautious while sitting as experts when expert evidence or report is required. [See, M. Radhakrishnan v. M/S. Surabhi Publications 2016 SCCOnline Ker 13198].

 

There is no specific code of conduct for expert witnesses however, for the opinion to be credible and to increase the evidentiary value of the opinion, the expert should provide all relevant data based on which the opinion has been made.

 

12. What interim remedies are available before trial?

 

As regards arbitration, a party can invoke jurisdiction of a court for an interim remedy u/s 9 of the Arbitration and Conciliation Act 1996. Section 9 prescribes that a party to an arbitration agreement can invoke jurisdiction of a court prior to an arbitration proceeding and can seek an interim relief mentioned thereunder. However, it is also stipulated that a party cannot enjoy the interim relief for an infinite period and the arbitration in such a case should be invoked within 3 months from the date of order granting any interim relief. As regards the matter when there is no arbitration agreement and the dispute is to be adjudicated by a civil court, for availing any interim remedy, a party has to first file a plaint/petition before the court and only thereafter the interim relief which is deemed appropriate by the court is granted. Order 39 of Code of Civil Procedure, 1908 envisages granting of interim injunction in such cases.

It is pertinent to take note that, under order 39 itself, the court has the power to grant ex parte ad-interim relief to the plaintiff/petitioner in such proceedings.

 

13. What are the principal methods of enforcement of judgment?

 

As per the provisions of Code of Civil Procedure 1908, after the evidence has been weighed, arguments heard, judgment pronounced, a decree is drawn. Order XXI of the Code deals with execution of decrees. A decree may be executed by either the court who passed such decree or by the Court to whom it is sent for execution. The decree  holder may apply to the court by way of an application in accordance with Schedule I to Order XXI. As regards arbitral awards, the party seeking execution is required to follow the same procedure for enforcement of the award as detailed under section 36 of Arbitration and Conciliation Act 1996 read with Order XXI of Code of Civil Procedure 1908.

 

14. Are successful parties generally awarded their costs? How are costs calculated?

 

The aspect of costs incurred by a party in legal proceedings is dealt with in terms of Section 35 of the Code of Civil Procedure 1908. Section 35 prescribes that the court has the discretion to determine whether costs are payable by one party to another, the quantum of costs and when they are to be paid.

 

Whereas s 35A provides for compensatory costs in respect of false or vexatious claims or defences, s 35B prescribes costs for causing delay. However, the provision being discretionary in nature, by and large the courts adopt a conservative approach while dealing with the aspect of costs. In most cases costs, if any granted to a party, are not on actuals and only nominal costs corresponding to the subject matter of the dispute are granted by the court.

 

15. What are the avenues of appeal for a final judgment? On what grounds can a party appeal?

 

Section 96 of the Code of Civil Procedure 1908, read with Ord. XLI provides for appeal from original decree and section 100 read with Ord. XLII provides for appeal from appellate decree. An appeal from original decree lies from every decree passed by any court exercising original jurisdiction, to a court authorized to hear appeals from the decisions of such court on any ground raising a question of fact or a question of law or a mixed question of fact and law. An appeal against appellate decree lies to the High Court from every decree passed in an appeal by any court subordinate to the High Court if the High Court is satisfied that the second appeal raises a substantial question of law. A party also has the remedy of filing a special leave to appeal to the Apex Court under the Constitution of India 1950 under Article. 136.

 

A few grounds on which a party can assail the decision of the court before the appellate court are as follows:

a. if the judgment is contrary to facts

b. if the judgment is not coherent with the settled legal position

c. if the judgment is in teeth of a contractual provision

d. if the judgment is not in conformity with the true and correct interpretation of a contractual or legal provision

e. if the judgment is based on no evidence;

f. if the judgment is passed in violation of principles of natural justice such as not granting a hearing opportunity to a party

 

16. Are contingency or conditional fee arrangements permitted between lawyers and clients? Is third-party funding permitted?

 

No. The Bar Council of India prohibits advocates from charging fees to their clients contingent on the results of litigation or pay a percentage or share of the claims awarded by the Court. The Bar Council of India Rules 1975, Rule 20 of Section II of Chapter II of Part VI, stipulates that an advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.

 

17. May Litigants bring class actions? If so, what rules apply to class actions?

 

The concept of class action suits or commonly known as representative suits are dealt with under Order 1 Rule 8 the of Code of Civil Procedure 1908, Order 1 Rule 8 of the Code provides that when there are number of persons similarly interested in a suit, one or more of them can with the permission of the court or upon a direction from the court, sue or be sued on behalf of themselves or may defend such suit on behalf of or for the benefit of all persons so interested.

 

18. Other statutes that accommodate class actions include –

 

ompanies Act 2013 more particularly ss 245 and 37, Competition Act 2002, s 53(4), Consumer Protection Act 1986 s (12(1)(c) and even the Industrial Disputes Act 1947 makes room for collective bargaining by workers (Employees) represented by a Union. Recently, the Government of India has notified the threshold limits of members or depositors to file a class action suit under Section 245 of the Companies Act 1956.

 

19. What are the procedures for the recognition and enforcement of foreign judgment?

 

The recognition and enforcement of a foreign judgment is governed by the provisions of Code of Civil Procedure 1908. A foreign judgment is defined u/s 2 (6) to mean the judgment of a foreign court. Section 2(5) stipulates that a foreign court means a court situated outside India and not established or continued by the authority of the Central Government.

 

A foreign decree is defined in the CPC 1908, Explanation II to section 44A as, “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 arbitral award, even if such an award is enforceable as a decree or judgment.

 

Foreign judgment or decree to be conclusive

 

A foreign judgment or decree should be conclusive as to any matter adjudicated by it. The test for conclusiveness of a foreign judgment or decree is laid down in the CPC s 13 which states that a foreign judgment shall be conclusive unless:

 

• It has not been pronounced by a court of competent jurisdiction

• It has not been given on the merits of the case

• It appears, on the face of the proceedings, to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable

• The proceedings in which the judgment was obtained are opposed to natural justice

• It has been obtained by fraud

• It sustains a claim founded on a breach of any law in force in India. Thus, before enforcing a foreign judgment or decree, the courts have to

 

ensure that the foreign judgment or decree passes the seven tests above If the foreign judgment or decree fails any of these tests, it will not be regarded as conclusive and hence not enforceable in India.

 

Mode of enforcement of a foreign judgment or decree There are two ways in which a foreign judgment or decree can be enforced in India depending on whether the judgment or decree has been given by a court in a reciprocating territory or not.

 

a. Foreign decree of a reciprocating territory be executed as an Indian decree
By virtue of the Code of Civil Procedure 1908, s 44A, a decree of any superior court of a reciprocating territory shall be executed in India as a decree passed by the Indian district court.

 

A reciprocating territory is defined in Explanation I to section 44A to be 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.

 

A judgment from a court of a reciprocating territory can be directly enforced in India by filing an execution application. Section 44A (1) of the Code states that where a certified copy of a decree of any superior court of a reciprocating territory has been filed in a district court, the decree may be executed in India as if it had been passed by the district court (meaning that the entire scheme of execution of decrees as laid down in the CPC Ord. 21 will be applicable).

 

While filing the execution application, the original certified copy of the decree along with a certificate from the superior court stating the extent to which the decree has been satisfied or adjusted has to be annexed to the application.

 

b. Filing a suit in case of decrees from nonreciprocating territories Where a judgment or decree is not of a superior court of a reciprocating territory, a suit has to be filed in a court of competent jurisdiction in India on that foreign judgment or on the original cause of action or both.

 

A suit on a foreign judgment/decree must be filed within a period of three years from the date of the judgment/decree

 

20. What are the main forms of alternate dispute resolution? Which are the main alternative dispute resolution organizations in your jurisdiction?

 

The main forms of Alternate Dispute Resolution recognized in India are Arbitration, Lok Adalats and Conciliation/Mediation.

 

As far as process of arbitration in India is concerned, there are two types- institutional and ad-hoc. Some of the institutes conducting institutional arbitration are as follows:

 

a. Indian Council of Arbitration;

b. Delhi International Arbitration Centre;

c. Mumbai Centre for International Arbitration

d. London Court of International Arbitration

e. FICCI

f. Singapore International Court of Arbitration

 

Other form of dispute resolution prevalent in India is Lok Adalat. Lok Adalat is an informal court convened to dispose of the matters through amicable settlement.

 

The third widely practiced dispute resolution process is the Mediation/Conciliation. In mediation, either of the parties can mutually appoint a mediator or the court can refer the parties to mediation. One such centre conducting mediation proceedings is run by Delhi High Court by the name of “Samadhan”.

 

21. Are there any proposals for reform to the laws and regulations governing dispute resolution currently being considered?

 

After the amendment of the Arbitration and Conciliation Act 1996 in 2015, the Saikrishna Committee Report recommended further amendments on the back of the 2015 amendments.

 

Consequently, the Arbitration and Conciliation (Amendment) Act 2019 has been passed. One of the outstanding feature of Arbitration and Conciliation (Amendment) Act, 2019 is the establishment of an independent body namely the Arbitration Council of India.

 

In addition to Arbitration, the Supreme Court, in the case of Afcons Infrastructure Ltd v. Cherian Varkey Construction Co. (P) Ltd, (2010) 8 SCC 24 observed that that all cases relating to trade, commerce, contracts, consumer disputes and even tortious liability could normally be mediated. Following the same, the 2018 amendment to the Commercial Courts Act 2015 (Section 12A), made it mandatory for parties to exhaust the remedy of pre-institution mediation under the Act before instituting a suit. The Commercial Courts (Pre-Institution Mediation and Settlement) Rules 2018 (the PIMS Rules) have been framed by the government.

 

Thereafter in the matter of MR Krishna Murthi v. New India Assurance Co. Ltd., [2019 SCC OnLine SC 315] the Supreme Court, asked the government to consider the feasibility of enacting an Indian Mediation Act to take care of various aspects of mediation in general.

 

22. Are there any features regarding dispute resolution in your jurisdiction or in Asia that you wish to highlight?

 

In India, disputes are resolved by litigation where Courts adjudicate upon issues from the very inception of the disputes. The Supreme Court is the Apex Court and the Highest Judicial body in the country. The High Courts in their respective States act as the highest adjudicatory institutes at the State level, followed by District Courts at lower levels. Modes of Alternate Dispute Resolution, with minimal Court intervention, recognized by law, include Arbitration, Mediation, Conciliation and Judicial Settlement by Lok Adalats.

 

It becomes pertinent to mention that steadily and uniformly, the Judiciary and the Legislature have been pressing for recognition of ADR as the choice of mode of dispute resolution between parties and all concerned parties are working towards building an amiable and conducive environment towards all modes of ADR.

 

TERRALEX COPYRIGHT GUIDE: India

Singhania & Partners LLP, Dipak Rao / Sonil Singhania

1.1 What are the main sources of copyright law?

The Copyright Act 1957 (the Act), supported by the Copyright Rules 1958 (the Rules), is the governing law for copyright protection in India. Substantial amendments were carried out to the Copyright Act in 2012. India follows a common law legal system, so relies on case law to interpret and set precedents in law and so the judicial decisions contribute to the sources of copyright law in India. India is a member of the Berne Conventions and Universal Copyright Convention. The Government of India has also passed the International Copyright Order, 1999. According to this Order, any work first published in any country that is a member of any of the above conventions is granted the same treatment as if it was first published in India.

2.1 What type of works can be protected by copyright?

Copyright subsists throughout India in the following classes of works:

  • original literary, dramatic, musical and artistic works
  • cinematograph films
  • sound recordings.

These are the broad categories, and can be summarised as follows:

 

Literary works

The term literary works” encompasses all works that are in print or writing, irrespective of the quality or style of the work. Literary work refers not only to works of prose and poetry, but anything that would be under the ambit of literature”. However, there will be no copyright if the work is merely a collection of words, the collection of which involved no literary skill. In India, a computer program is treated as a literary work and is protected as such.

 

Dramatic works

A dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film.

 

Musical works

Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written to enjoy copyright protection.

 

Artistic works

Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; a work of architecture; and any other work of artistic craftsmanship. Any colour scheme, layout or arrangement of any alphabets or features qualifies as an artistic work.

 

Cinematograph films

Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording; “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.

 

Sound recordings

Sound recording means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings.

 

2.2 What is required for works to qualify for copyright protection?

Any work which falls under any of the categories mentioned above. The work sought to be copyrighted must be original; however, it is not necessary that the work should have some original thought or idea. The law is only concerned about the originality of the expression of thought.

 

2.3 What rights does copyright grant to the rights holder?

A copyright grants protection to the creator and his or her representatives (by way of an agreement), for the works and prevents such works from being copied or reproduced without their consent.

The creator of a work can prohibit or authorise anyone to:

  • reproduce the work in any form, such as print, sound, video, etc
  • use the work for a public performance, such as a play or a musical work
  • make copies/recordings of the work, such as via compact discs, cassettes, etc
  • broadcast it in various forms
  • translate the same to other languages.

 

2.4 Are moral rights protected (for example, rights to be identified as an author of a work or to object to derogatory treatment of a work)?

Yes, the Act grants an author special rights which exist independently of the author’s copyright, and subsist even after the assignment (whole or partial) of said copyright. The author has the right to:

  • claim authorship of the work
  • restrain or claim damages with respect to any distortion, mutilation, modification, or other act in relation to the said work if such distortion, mutilation, modification, or other act would be prejudicial to their honour or repute.

These special rights can also be exercised by the legal representatives of the author

 

A recent amendment to copyright law states that the right against distortion is available to the author even after the expiry of the term of copyright. Previously, it was available only against distortion, mutilation etc. done during the term of copyright of the work.

 

2.5 What is the duration of copyright in protected works?

The duration of protection for copyright works variesaccording to the type of work and the date of creation:

 

Category of work

Literary, dramatic, musical or artistic works

Duration

Copyright expires 60 years from the end of the calendaryear in which the author dies.

Where a work has a joint author/co-author, it expires 60years from the end of the calendar year in which the lastknown author dies.

Where the author’s identity is unknown, copyright expires 60 years from the end of the calendar year in which the work was first published. In a case where there are joint authors/co-authors, and the identity of one author is known and the identity of the other is unknown, the copyright expires 60 years from the end of the calendar year in which the known author dies.

Category of work

Cinematograph films

Duration

Copyright shall subsist until 60 years from the beginningof the calendar year following the year in which the filmis published.

Category of work

Sound recordings

Duration

Copyright shall subsist until 60 years from the beginningof the calendar year following the year in which thesound recording is published.

 

2.6 For how long do moral rights subsist in copyright works?

An author’s moral right, which is a right against distortion, is available even after the expiry of the term of copyright.

3.1 Who is the first owner of a copyright work?

The concept of “first owner” Indian copyright law is quite important and may be determined as follows:

In the case of a literary, dramatic or artistic work (which includes a photograph, painting or a portrait) created during the course of employment or under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the author of such a publication shall, in the absence of a contract to the contrary, be the first owner of copyright.

 

However, such ownership shall vest with the proprietor of the publication only for the limited purpose of publishing the work or a reproduction of the work in a publication and, for all other purposes, the copyright shall vest with the author of the work.

 

If a photograph, painting or portrait has not been made for the purposes of publication in a periodical but has been made for any other purpose, then in the absence of a contract to the contrary, the copyright in such work shall vest with the person at whose instance the work was created.

 

In the case of a cinematograph film, in the absence of a contract to the contrary, the copyright in the cinematograph film shall vest with the producer of the film (i.e. the person at whose instance the film was made for a valuable consideration).

 

In the case of a work made during the course of employment or under a contract of service or apprenticeship, the employer shall, in the absence of a contract to the contrary, be the first owner of copyright. In the case of a government work, the copyright in the work shall vest with the Government.

 

3.2 Can copyright in a work be jointly owned? If so, what are the rights of a co-owner?

As per the Act, work of joint authorship means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors. Thus, the Act recognises joint authorship. Joint authors fully enjoy all of the rights granted by the Act, as mentioned previously. The term of copyright of a work of joint authorship is calculated with respect to the author that dies last.

 

3.3 Can you register copyright? If so, what are thebenefits of such registration and what othersteps, if any, can you take to help you bring aninfringement action?

Under Indian law, registration is not a prerequisite for acquiring a copyright in a work. A copyright in a work is created when the work is created and given a material form, provided it is original.

 

However, the Act provides a procedure for copyright registration. Such registration does not confer any special rights or privileges with respect to the registered copyrighted work. It is however suggested that the owner of such original works register it as the certificate of registration of copyright and the entries made on the Register serve as prima facie evidence in a court of law when a dispute relating to ownership of copyright arises. Copies of the entries and extracts from the Register that are certified by the Registrar of Copyrights are admissible as evidence in all courts. Thus, registration only raises a presumption that the person in the Register is the actual author, owner or rights holder. In infringement suits and criminal proceedings, when time is of essence to obtain urgent orders, registration is of tremendous help. Copyright notice is not necessary under Indian law to claim protection.

 

3.4 What steps should you take to validly transfer, assign or license copyright?

An assignment of copyright shall be valid only when it is in writing, signed by the assignor or by his/her duly authorised agent.

 

3.5 Can moral rights be transferred, assigned or licensed?

No: moral rights cannot be transferred or assigned.

A copyright is infringed if a person without an appropriate permission or licence does anything that the owner of the copyright has an exclusive right to do. There are two classes of infringement: primary infringement and secondary infringement.

 

Primary infringement occurs where a person performs any of the following acts without the consent of the rights holder.

 

  • Copying
  • Issuing copies of the work to the public
  • Renting or lending the work to the public
  • Performing, showing or playing a copyright work in public
  • Communicating the work to the public
  • Making an adaptation of a copyright work or doing any of the acts listed above in relation to an adaption.

 

4.2 What acts constitute secondary infringement of copyright?

Secondary infringement occurs where a person, with knowledge or reasonable grounds for such knowledge, carries out any of the following actions in relation to infringing copies of the work:

 

  • Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire
  • Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright
  • By way of trade exhibits in public
  • Imports into India

 

 

4.3 What acts are permitted with respect to copyright works (ie what exceptions apply)?

Under the Act there are certain circumstances which constitute fair dealing, which is not considered an infringement .. The lists of non-infringing acts are summed up below:

 

Use

Parody

Conditions

There must be no intention to compete with the copyright holder, and the motive for use of copyrighted matter must not be improper.

Use

Private use, including research

Conditions

Applicable only to literary, dramatic, musical or artistic works.

Use

Criticism or review

Conditions

Use

Reporting of current events, through newspaper, magazine or similar periodical, photographs or film.

Conditions

Exception – the publication of a compilation of addresses or speeches delivered in public is not

fair dealing.

Use

Reproduction of any work for the purpose of judicial proceedings or a report of judicial proceedings, or in any work produced by any house of any Legislature, exclusively for the use of the members of that Legislature.

Conditions

Use

The making of copies or adaptation of a computer program in order to utilise the computer program for the purposes for which it was supplied; or to make back-up copies purely as a temporary protection against loss, destruction or damage.

Conditions

Must be the lawful possessor of a copy of such computer program.

Use

Any act done to achieve operating inter-operability of an independently created computer program with other programs by a lawful possessor of a computer program.

Conditions

Only applicable if such information is not otherwise readily available.

Use

The making of copies or adaptation of the computer program from a personally legally obtained copy for non-commercial personal use.

Conditions

Use

The reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force.

Conditions

Use

The reading or recitation in public of any reasonable extract from a published literary or dramatic work.

Conditions

 

Use

The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions.

Conditions

Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years.

Use

Reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination; or in answers to such questions.

Conditions

 

Use

The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording.

Conditions

The audience must be limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording.

Use

The making of sound recordings in respect of any literary, dramatic or musical work, if sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, or the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him.

Conditions

 

Use

The causing of a recording to be heard in public by utilising it, in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or as part of the activities of a club or similar organisation which is not established or conducted for profit; or as part of the activities of a club, society or other organisation which is not established or conducted for profit.

Conditions

 

Use

The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.

Conditions

 

Use

The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction.

Conditions

 

Use

The publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public.

Conditions

 

Use

The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.

Conditions

Provided that where the identity of the author of any such work (or, in the case of a work of joint authorship, of any of the authors) is known to the library, museum or other institution, the provisions of this clause shall apply only if such reproduction is made at a time more than 60 years from the date of the death of the author (or, in the case of a work of joint authorship, from the death of the author whose identity is known; if the identity of more authors than one is known, from the death of such of those authors who dies last).

Use

The storing of a work in any medium by electronic means by a non-commercial public library for preservation, if the library already possesses a non-digital copy of the work.

Conditions

 

Use

The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library for the use of the library if such book is not available for sale in India.

Conditions

 

Use

The reproduction or publication of any matter which has been published in any Official Gazette except an Act of a Legislature, or any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter, or the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government, or any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court.

Conditions

 

Use

The production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder. 

Conditions

Provided that no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public. Also provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government.

Use

The making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture.

Conditions

 

Use

The making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work failing under Section 2(c)(iii) of the Act, if such work is permanently situated in a public place or any premises to which the public has access.

Conditions

 

Use

The inclusion in a cinematograph film of any artistic work permanently situated in a public place or any premises to which the public has access; or any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film.

Conditions

 

Use

The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work.

Conditions

 

Use

The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.

Conditions

Religious ceremony including a marriage procession and other social festivities associated with a marriage.

Use

The adaptation, reproduction, issue of copies, or communication to the public of any work in any

accessible format by any person to facilitate persons with disabilities to access the works; or any organisation working for the benefit of persons with disabilities in the case that the normal format prevents the enjoyment of such work by such persons.

Conditions

The copies of the works in such accessible format are made available on a non-profit basis and only to recover the cost of production, and the organisation shall ensure that the copies are used only by persons with disabilities, and take reasonable steps to prevent their entry into ordinary channels of business.

 

 

4.4 Is it permissible to provide a hyperlink to, or frame, a work protected by copyright? If so, in what circumstances?

Under the Act, hypertext linking does not per se constitute copyright infringement; however, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in the case of hyperlinking, the linking site is not reproducing any work. If the reproduction occurs, it is at the user’s end, who visits the linked page via the link. Technically, the linking site is only informing people about the presence of the work and giving the address of the site where the work is present. It is at the user’s discretion to access the work by clicking the link. But, nevertheless, the linking site is definitely aiding in the distribution of the work.

 

4.5 Is a licensee of copyright able to bring an infringement action?

Under the Act, an infringement of copyright is actionable by the copyright owner. When copyright is licensed, the authority to bring an infringement action depends on the type of licence involved.

 

An exclusive licence authorises the licensee to exercise a right which would otherwise be exercisable exclusively by the copyright owner. One such right is the right to bring an infringement action.

 

A non-exclusive licensee may also bring an infringement action but only where the licence is in writing and signed by the copyright owner and expressly grants the non-exclusive licensee the right of action.

5.1 What remedies are available against a copyright infringer?

The Act provides the following remedies for copyright infringement:

 

  • Civil
  • Criminal
  • Administrative

 

However, it is only the first two remedies, civil and criminal, which are of any real practical importance. Under civil remedies, one may file for interlocutory injunction, pecuniary remedies, Anton Piller orders, Mareva injunction and accounts rendition, delivery of infringing copies and damages for conversion. Under criminal remedies, one may file for imprisonment and fine, seizure of infringing copies and delivery of them to the owner. Under administrative remedies, one may file for moving the Registrar to ban the import of infringing copies and delivery of the confiscated infringing copies to the owner.

 

5.2 Are there any specific remedies for online copyright infringement?

A court can direct that infringing websites be blocked by internet service providers (ISPs) either as part of a John Doe order or a website-blocking order [RK Productions v BSNL (2012) 5 LW 626]. John Doe or Ashok Kumar orders are ex-parte interim injunctions issued against infringers. John Doe orders saw a change when the Bombay High Court passed an order dated July 26, 2016 in relation to the movie ‘Dishoom’ [Eros International and Another Vs BSNL & Others, Notice of Motion (L) No. 2147 Of 2016 in  Suit (L) No. 751 OF 2016]. This order recognises the impact of Ashok Kumar orders on unknown defendants as it challenges to balance the ‘competing rights’. The order lays down a process to minimise the negative impacts of Ashok Kumar orders and tailors down blocking from entire websites. The order sets in place a mechanism that provides for selective blocking of content, verification of the list of URLs as well as safeguards for the unknown defendants.  Such a mechanism helps ensure that freedom of speech online is not trampled in the fight against online piracy.

 

5.3 Under what circumstances is copyright infringement a criminal act and what sanctions

may apply?

The Act prescribes that the intentional infringement or abetment of an infringement of the copyright in a work would be considered as criminal act. Criminal remedies for copyright infringement include:

 

  • Punishment through imprisonment which may not be less than six months but which may extend to three years
  • Fines which shall not be less than Rs.50,000 and which may extend to Rs.200,000
  • Search and seizure of the infringing goods including plates, which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to be used for printing or reproducing copies of the work
  • Delivery up of infringing copies or plates to the owner of the copyright.

 

5.4 Is there a time limit for bringing a copyright infringement claim?

The time limit for bringing a copyright infringement claim is three years from the date of infringement. Where the cause of action for filing a suit for infringement of copyright is a recurring one or continuing in nature, the limitation period of three years would be taken to commence from the date of such last infringement.

 

5.5 Can legal (or any other) costs be recovered in an action for copyright infringement? If so, what percentage of costs will typically be recovered by the successful party?

Under the Act, the plaintiff can seek recovery of all three remedies, namely (a) account of profits (b) compensatory damages and (c) conversion damages, which are assessed on the basis of value of the article converted.

6.1 What courts can you bring a copyright infringement action in, and what monetary

thresholds, if any, apply?

Every suit or civil proceeding in respect of the infringement of copyright can be instituted before a District Court or above.

 

6.2 Are there any other ways in which you can enforce copyright?

Copyright Board

The Copyright Board is a body constituted by the Central Government to discharge certain judicial functions under the Act. The Board is entrusted with the task of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of licences in respect of works withheld from public, unpublished Indian works, production and publication of translations and works for certain specified purposes. It does not deal with copyright infringement cases or with criminal piracy of copyright works.

 

6.3 What agency bodies are responsible for promoting and/or enforcing copyright? If so,

what do they do?

 

In India, the Copyright Office is the government body responsible for promoting and enforcing copyright. The Office is under the control of the Registrar of Copyrights who acts under the direction of the Central Government. Specifically, the Copyright Office is under the aegis of the Department of Higher Education, Ministry of Human Resource Development.

 

6.4 What are the main collective rights management agencies that operate in your jurisdiction and who do they represent?

 

In India, there are some registered copyright societies which undertake the management and protection of copyright in works of authors and other owners of such works.

 

Some of them are listed below:

 

  • Musical works: The Indian Performing Right Society Limited (IPRS)
  • Sound recording: Phonographic Performance Limited (PPL)
  • Reprographic (photo copying) works: Indian Reprographic Rights Organization (IRRO)
  • Performers’ (Singers’) Rights: Indian Singers’ Rights Association (ISRA).

 

6.5 Are copyright levies payable? By whom, and in what circumstances?

The Indian Act does not prescribe any copyright  levies.

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7.1 What do you consider to be the top recent copyright development?

 

Question of Employment under Section 17 of The Copyright Act

Neetu Singh vs. Rajiv Saumitra & Ors.

Citation: MANU/DE/1912/2018

 

The Plaintiff, sought permanent injunction against the Defendants from reproducing, publishing, distributing, selling and offering for sale one of the copyrighted literary work “English for General Competitions” and related artistic works, copyright of which was vested in the Plaintiff. The books authored by her were earlier published through Paramount Reader Publication and thereafter Paramount Reader Publication OPC Pvt. Ltd. Paramount Reader Publication was given the right to publish the books, the same never being licensed, assigned or transferred to any of the Defendants. Copyright in the books vested in the Plaintiff, this fact being in the knowledge of the Defendants was never objected by them.

 

The Plaintiff’s book illegally published by Defendant was a verbatim copy incorporating all artistic works and mistakes originally appearing. The Plaintiff contended that in absence of contract of service between parties and the fact of copyright in her favour was prima facie evidence of her authorship of the book.

 

In dealing with the issue whether a contract of service, as per Section 17 of the Act, existed between the Parties, the Court dealt with fair use provision and distinguished between works for course of instruction and for commercial purposes, and held that the Defendant’s act of selling books to students after copying the study material amounts to commercial activity and thus cannot be deemed as fair use. The Plaintiff’s employment can be determined by Articles of Association and the agreement, which, being absent, the Plaintiff was held to be owner of copyright. Therefore, in case of a dispute regarding copyright between employer and employee, the terms of employment are relevant. 

 

Delhi University Photocopying Case

The Chancellor, Masters & Scholars of University of Oxford & Ors. Vs. Rameshwari Photocopy Service & Ors.

Citation: MANU/DE/3285/2016

 

The Court restrained Rameshwari Photocopy Service from photocopying copyrighted work based on a petition filed by the Appellant publishers. The Appellants alleged that the kiosk was violating their copyright and was causing huge financial losses, as students instead of buying textbooks were relying on the photocopies.. The Court held that photocopying portions of books for personal use would amount to fair use and copyright not being the divine right, the ban was revoked and the case dismissed.

 

An appeal was filed to the Higher Bench of Delhi High Court wherein interim injunction was refused to the Appellants and the Court held that the Defendants did not infringe the copyright as their work was justified by purpose of educational instruction. The matter was remanded to single bench of the Court to determine the necessity of copyrighted material in course packs for educational instruction. The Court considered the inability of economically disadvantaged students to purchase different books and revoked the ban, which was hailed by the studnets as a means of easy access to education.

 

Right to Dub Included In Right to Communicate To Public

Mr. Thiagrajan Kumararaja Vs. M/s Capital Film Works (India) Pvt. Ltd., S.P. Charan

Citation: MANU/TN/3844/2017

 

The Appellant contended that he had authorized the producer to use his script for making a cinematograph film in Tamil language alone, and not remake or dub the film in any other language.

On dismissal, the Appellant filed an appeal for permanent injunction against the Respondents on the ground that since the rights were not assigned, the producer could not dub and make another film under Section 19 of the Act.

The Respondents contended that dubbing constituted the “right to communicate the film to public” under section 14 (d) (iii) of the Act, they paid consideration for the script, and thus being the first authors, converted it into a cinematograph film with consent of the Appellant.

The Court held that under Section 14 of the Act, the producer is the author of the film and has the right to make its copy, sell or give it on hire or offer for sale or hire and also communicate it to public, which includes dubbing. It was observed that “otherwise enjoys”, provided under Section 2(ff) enlarges the scope of usage of right and enables the Respondent to dub the movie in language of his choice for communication to public.

 

 

7.2 What do you consider will be the top copyright developments in the next year?

 

Petition Filed in Supreme Court to Challenge Constitutionality of Provisions on Compulsory and Statutory Licensing in the Copyright Act

M/S Lahari Recording Company vs. Union of India

Writ Petition(s) (Civil) No(s).: 667/2018

 

In the present petition, the Plaintiff, Lahari Recording Company, has challenged sections 31 (1) (b) and section 31 D of the Act — on the grounds that they infringe the Plaintiff’s fundamental and constitutional rights. While section 31 (1)(b) provides for a system of compulsory licensing of works whose owner has refused to allow their communication to the public on reasonable terms, Section 31 D created a regime for mandatory licensing of works to broadcasting organizations on terms formulated by the Intellectual Property Appellate Board (IPAB).

 

The Plaintiff contends that section 31 (1) (b) does not envisage hearing the copyright owner on every occasion on which a compulsory licence is granted to parties considered qualified by the Intellectual Property Appellate Board (IPAB). Similarly, section 31 D envisages the grant of a statutory licence without hearing the copyright owner.The essence of the Plaintiff’s petition is that the impugned provisions fundamentally alter the bargain that the copyright system is based on, by taking away the incentive for copyright owners to create original content. The grievance of the Plaintiff is that the Sections 31(1)(b) and 31D of the Act would disrupt the long standing mutually negotiated voluntary license agreements with broadcasters and with the coming of the impugned provisions, such broadcasters would have no incentive to enter into and/or continue with the voluntary license agreements with the labels and instead would attempt to terminate or wriggle out of their agreements with the labels in order to approach the Appellate Board to have terms convenient to them fixed and imposed upon the labels.

 

This makes these provisions, in Plaintiff’s view, arbitrary and thereby violative of Article 14 of the Constitution of India. Given that section 31 (1) (b) gives IPAB the power to formulate the terms on which a compulsory licence is to be granted by taking away this right from the copyright owner’s remit, the Plaintiff contends that it makes an impermissible inroad into the contractual freedom of copyright owners and unduly constrains the exercise of the rights that are a natural consequence of being a copyright owner.

 

The Plaintiff also challenges section 31 D on the grounds that the provision removes the relationship between broadcasters and music labels from the realm of commercial negotiation and enables broadcasters to utilise copyrighted content at subsidised and preferential rates. This, the Plaintiff contends, unduly tips the scales in favour of broadcasters by prioritising the commercial profitability of broadcasters over the interests of copyright owners. By virtue of the fact that these provisions unduly constrain the exercise of the rights of copyright owners, the Plaintiff contends that they take away the incentive for a copyright owner to create more original content. On a practical level, the Plaintiff contends that, by virtue of the existence of the statutory licensing route, broadcasters are likely to seek an escape hatch from their contractual arrangements with copyright owners and instead seek to access the statutory licensing route, which is more favourable for them.

Although no replies have been filed in the matter thus far, if the Petitioner succeeds by convincing the Supreme Court, this would become a landmark judgment by altering the foundation of Copyright Law.

VIKAS GOEL’S THREE POINTERS  AT INDIA INFRASTRUCTURE FORUM ON EFFICIENT DISPUTE RESOLUTION IN THE ROAD SECTOR

VIKAS GOEL’S THREE POINTERS AT INDIA INFRASTRUCTURE FORUM ON EFFICIENT DISPUTE RESOLUTION IN THE ROAD SECTOR

Vikas Goel, Partner Singhania & Partners LLP spoke at the India Infrastructure Forum which was organized by India Infrastructure Publishing from Monday, 8 April to Wednesday 10 April 2019.

The conference discussed the steps to be taken by the New Government and the initiative taken by the various different states to ensure efficient development in the Road Sector of India.

Vikas spoke in the session on Road Policies and Programmes: Experience, Issues and the Way Forward

He threw light on the major issues that arise during a dispute resolution procedure in the road sector. Furthermore, he provided valuable suggestions in order to make the Dispute Resolution procedure in the Road Sector efficient and less time consuming for the contractors and Concessionaires.

Click on the video to know more about the legit pointes he made regarding Dispute Resolution in the Road Sector.

 

Other speakers in the session included, Nagendra Nath Sinha, Chairman, NHAI; Sudhir Hoshing, Joint MD, IRB Infrastructure; T.R. Rao, Executive VP, PNC Infratech; and Nirpesh Kumar, Partner, Ernst & Young

MISCELLANEOUS QUESTIONS ON M&A IN INDIA

MISCELLANEOUS QUESTIONS ON M&A IN INDIA

Regulatory Requirements – Deposit Monies & Third-Party Intermediary

 Q1) Is there any mandatory requirement to deposit monies with the third party?

There is no mandatory requirement to deposit monies with the third party; the same depends upon the intention of the parties to the transaction.

Appointment process for changing stockholders (any tax payable) officers and directors

Q2) What is the procedure to appoint directors and any other officer of the company?

New stockholders and directors require approval of the Board of Directors. In some cases approval of the shareholders at a general meeting may also be required for appointment of directors. Other officers are generally appointed by any director/management personnel so authorised by the Board of Directors in this regard.

Powers of the Attorney Restrictions

Q3) What are the limitations of power endowed by a power of attorney?  

The powers of the attorney is limited by the terms & conditions contained in the power of attorney.

Evidence of Due Execution – Faxed/emailed Documents Admissible in Court?

Whether a document sent through fax or email admissible in court of law? Yes a faxed/e-mailed document could be admissible in court of law as evidence of due execution subject to the condition that the party submitting it as evidence has the original document in possession.

 Digital signatures admitted as evidence of execution?

 Q4) Whether digital signature certificates admissible as evidence in court of law?

Yes.

Strictly Enforced “Undertakings”

Q5) Do lawyers give any strictly enforced undertakings?

Lawyers generally do not give “undertaking” in India.

Required due execution legal opinions, requirements, and rules concerning the giving of opinions?

Q6) Is there a statutory requirement to seek legal opinion before execution of transactional documents or closing of transaction?

It is common for parties to seek legal opinion to ensure that the documentation required to be executed is in order and complies with the closing formalities (representation & warranties on part of the buyer). But there are no specific rules or legislation governing the same.

Non-compete enforceable? If so, how long for?

Q7) Whether a non-compete clause enforceable in India?  

Non-compete may be enforceable provided restriction is for a reasonable period. Generally, restrictions for a period from one to two years may be considered reasonable depending on the nature of business.

PROCEDURE OF TRANSFER OF SHARES DURING M&A

PROCEDURE OF TRANSFER OF SHARES DURING M&A

Private Limited Company – Transfer Title to Shares

Q1) What is the procedure to transfer shares of a company?

The share transfer deed, duly stamped, is required to be executed both by the transferor and the transferee and delivered to the company along with the share certificates. The company will approve the transfer of shares and record the transfer in its registers and endorse the transferee details on the share certificate, and return it to the transferee. Where shares are held in dematerialized form, the delivery instruction slip, relating to shares, signed by the transferor is required to be deposited with Depository Participant where transferee is maintaining his de- mat account. Thereafter, shares will be credited in the de-mat account of the transferee.

Share & Asset Sales Timetable

 Q2) Is there any statutory time limit to complete sale of shares or assets?  

The time frame for sale of asset and shares entirely depends on the parties and the complexity of the transaction.