LIABILITIES & PROTECTION CONCERNING CIVIL AVIATION

LIABILITIES & PROTECTION CONCERNING CIVIL AVIATION

 

Introduction:
Air travel is one of the prime inventions of the previous century. It has not only widened the concept of travel but has also opened various new possibilities. Air travel is not only the fasted mode of travel for people or goods but also the safest mode of transportation too. While fatal airplane crashes are statistically quite rare these days, numerous types of other accidents and injuries are still common in air travel.

 

In order to establish uniformity and clarity on various aspects relating to international carriage of passengers, goods, and baggage through air transport (including liabilities and limitations), the members of International Civil Aviation Organization formulated and adopted an international treaty on known as the Montreal Convention 1999 (“ MC99”). Pursuant to adoption of MC99 if an airline passenger is injured or killed on an international flight, that passenger’s right to compensation and carrier’s liability will be settled in accordance with the terms of MC99. MC99, being a repository on this matter, is a global standard.

 

MC99 provides for the circumstances when a carrier shall be liable to pay compensation to a passenger for any claim of death, wounding or bodily injury. It also specifies the ceiling of a monetary liability on the carrier in case of any incident.

Below are some other important features of MC99:

  • The possibility of bringing a lawsuit before the courts in the passenger’s principal place of residence;
  • Increased liability limits in the event of delay;
  • The obligation for air carriers to maintain adequate insurance.

Indian government has also ratified MC99 and has made relevant amendments in its domestic legislation to incorporate the provisions of MC99.

 

The Legislative Uprising: The Indian Perspective

Air transport is regulated by the provisions of Carriage by Air Act, 1972 (“Act”) and the policies, rules and regulations formulated by Director General of Civil Aviation from time to time. The Act consists of the provisions of the Warsaw Convention 1929 (as amended by the Hague Protocol 1955). India became the 91st country to ratify the MC99. The MC99 has majorly influenced liabilities concerning Civil Aviation. It points out the circumstances in which entities will be held liable for death or injury caused to any passenger. The Indian Legislature has accordingly aligned the objectives to fill in the gaps between the convention and the Act. The Act has been amended from time to time to be in line with the present scenario, the most recent amendment being in the year 2016.

 

The application of the Act extends to all carriage like carriage of passengers, baggage or cargos performed for remuneration. The Act also complies with the amendments made to the Warsaw Convention through the Protocol of amendments of the Warsaw Convention, 1959 dealing with the liability of the air carrier to passengers and cargo. The Act however does not put any quantification on the liability of the carrier for death, wounding or bodily injury has.

 

The legislative development provides greater protection to passengers and carriers in terms of their respective rights and liabilities in the event of an accident involving a domestic flight within India. Further, the Act provides for the liability of the carrier for damage sustained in the event of the death of a passenger or any other bodily injury suffered, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Hence, liability of the air carrier is conditional on the fact that the death took place on board or during the operations of boarding or getting off.

 

The Act, consists of  certain provisions which immune the carrier from any liability being imposed upon it, the carrier is not liable if it proves that it and the agents of the carrier have taken all necessary measures to avoid the damage or there was no possibility to take such measures, or due to negligent pilotage or negligence in the handing of the aircraft and that, in all other respects, he and his agents have taken all necessary measures to avoid the damage.

 

In cases where, the carrier proves that the damage was caused by or contributed by the negligence of the injured, the Court may exempt the carrier wholly or partly from his liability.

 

Mangalore Air Accident Case:

An Air India Express flight from Dubai to Mangalore crashed while landing on 22nd of May 2010, killing 158 of 166 people on board including crew. The Investigation reports revealed that it was due to the Captain’s failure to discontinue an unstable approach despite multiple calls from the First Officer and several warnings from the Enhanced Ground Proximity Warning System.

 

The controversy was whether the Air Carrier is liable to pay minimum compensation of 100,000 Special Drawing Rights to the claimants in the case of death of a passenger irrespective of actual damage suffered.

 

The contention raised by the appellant-Air Carrier was that there was no minimum or maximum compensation payable under any of the provisions of the Third Schedule of the act and the peculiar feature of MC99 incorporated in the Act was that there is no upper limit for liability of the air carrier for compensation payable to the victims and on proof of damage, the compensation payable for death or injury is without limit.

 

However, the above judgment was overturned saying that the third schedule to the Act do not provide any minimum compensation for the death or injury of a passenger. The carrier is liable to pay any actual damages proved by the claimants in the case of death or injury.

 

Conclusion:

It can thus be concluded that noting the deviations from the conventions, India has established a self-sustaining code for the same. The code is in line with the International Protocols and treaties along with the codes which were active before the current legislations and those which lead to the formation of it. Therefore, the information and contingencies linked with possible circumstances stand corrected, and the present regime is active in protecting the air passengers which provides a sense of comfort in the realm of civil aviation, along with the ever rising and dynamic chain of events that may take place.

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.

 

HANDBOOK FOR THE BOARD OF DIRECTORS

HANDBOOK FOR THE BOARD OF DIRECTORS

Ravi Singhania


updated on 2/06/2020

INTRODUCTION

Recent international and local jurisprudence has necessitated the establishment of a standard of conduct, which is warranted from the directors of a company. With this objective in mind, the Companies Act, 2013 (hereinafter referred to as the ‘Act’) has been added into the statute book of the land. The Act replaced the previous Companies Act, 1956. Under the Act, the board of directors of the company, who are responsible for the management of the company, are given wide powers to carry out the objectives of the company. The purpose of this handbook is to lay down the duties, responsibilities and liabilities of board of directors in light of the provisions of the Act.*

 

CONSTITUTION OF BOARD OF DIRECTORS

 

The following excerpt is apposite for the purpose of understanding and perceiving the true meaning of the term “director.”*

 

“At common law, once a person accepts appointment as a director, he becomes a fiduciary in relation to the company and is obliged to display the utmost good faith towards the company and in his dealings on its behalf.”

 

Under the Act, the term director has simply been stated as a person who is appointed to the Board. However, the elaborate provisions of the Act, when read entirely, puts forth the idea behind the term ‘director’. The Act envisages appointment of independent directors, woman directors and other directors (non-independent directors). Also, the Act provides that each company shall have a Board of Directors comprising of individuals as directors and shall have the following number of directors in each of these cases:

 

  • a minimum of three directors in the case of public company4
  • a minimum of two directors in the case of private company5
  • a minimum of one director in the case of one Person Company6
  1. Independent Director: The Act prescribes appointment of independent directors on the board in the following
    cases:

           (1.1) At least one third of the board to comprise of independent directors in case of Public listed companies; and
           (1.2) Certain other specified companies that meet the criteria listed below are required to have at least two independent directors:

 

  • Public companies which have paid up share capital of INR 10,00,00,000 (Rupees Ten Crore only);
  • Public companies which have a turnover of INR 1,00,00,00,000 (Rupees One Hundred Crore only); and
  • Public companies which have, in the aggregate, outstanding loans, debentures and deposits exceeding INR 50,00,00,000 (Rupees Fifty Crore only)
  • Woman Director: Every listed company or every other public company having a paid up share capital of INR 1,00,00,00,000 (Rupees One Hundred Crore) or more or turnover of INR 3,00,00,00,000 (Rupees Three Hundred Crore) or more shall appoint a woman director

 

It is to be noted that the total number of directors should not exceed 15 (fifteen)8. However, the company may appoint more than fifteen directors through a special resolution to the same effect.9 Every company should have at least one director who has stayed in India for a total period of not less than 182 days (One Hundred and Eighty Two Days) during the financial year.

 

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FDI IN RETAIL TRADING IN INDIA

FDI IN RETAIL TRADING IN INDIA

The Indian retail sector has tremendously grown over the last decade with a significant shift towards organised retailing format. India’s retail market contributes to over 10 percent of the country’s Gross Domestic Product (GDP). The share of the Indian retail market is expected to increase by 60 percent to reach USD 1.1 trillion by the year 2020. Typically, retail is understood to be the sale of goods to end users, not for resale, but for use and consumption by the purchaser. The retail transaction is at the end of the supply chain. Interestingly, courts in India have defined the term ‘retail’ as a sale for final consumption in contrast to a sale for further sale or processing (i.e. wholesale). Traditionally, the retail sector in India was considered to be a sensitive sector especially due to factors, such as (i) the employment it generates and (ii) of its early and undeveloped stage (particularly the domestic organized retail segment) it is not in a position to compete with large players. As a result, the Government policy has largely been to protect agriculturist and small retailers and therefore has discouraged entry of bigger retailers. However, that has now changed, and the government of India has revised its foreign direct policy (FDI Policy) to allow foreign direct investment (FDI) in the retail sector subject to certain conditions. Some of the key changes are discussed below:

 

Conclusion

While opening of the retail sector to FDI is a welcome step, some regulatory aspects need to be examined by the government to ensure robust growth of this sector. Some of these aspects relate to (a) local sourcing requirements which adversely impacts quality control for big retail giants. Further, the relaxations, from local sourcing requirement, provided to the SBRT entities, having state of the art technology, needs clarity as there is no specific definition set out in the FDI Policy setting out what constitutes state of the art technology; (b) government approval in connection with MBRT and food retail can be time consuming resulting in high costs for such entities; (c) Restrictions on ecommerce entities having relations with any of its vendors needs to be balanced keeping in mind the interest of the consumer as such relations do benefit the end consumer in the nature of discounts etc.