Enforcing Contracts Questionnaire New Delhi

Transcription

1 Enforcing Contracts Questionnaire New Delhi Dear Contributor, We would like to thank you for your participation in the Doing Business project. Your expertise in the field of contract enforcement in New Delhi is essential to the success of the Doing Business report, one of the flagship publications of the World Bank Group that benchmarks business regulations in 190 economies worldwide. The Enforcing Contracts indicator, which measures the time and cost to resolve a standardized commercial dispute as well as a series of good practices for the judiciary, is one of the 11 indicator sets published by the Doing Business report. The report attracts much attention around the world. The latest edition, Doing Business 2017: Equal Opportunity for All, introduced improvements in the paying taxes and protecting minority investors indicators, and included a gender component in 3 of 11 Doing Business indicator sets. It received over 7,000 media citations within just a week of its publication on October 25, 2016 and the report was downloaded almost 40,000 times within that same period. A record 137 economies implemented a total of 283 reforms. Low and middle income countries carried out more than 75% of these reforms, with Sub-Saharan Africa accounting for 80 of them. Governments worldwide read the report with interest every year, and your contribution makes it possible for the Doing Business project to disseminate the regulatory best practices that continue to inspire their regulatory reform efforts. Since 2010, economies worldwide have implemented 93 reforms making it easier to resolve a standardized commercial dispute through the courts. In 2015/16, 18 economies implemented such reforms. We are honored to be able to count on your expertise for Doing Business Please do the following in completing the questionnaire: Review the assumptions of the case study before updating last year s information in the questionnaire. Describe in detail any reform that has affected the process of enforcing contracts since June 1, Be sure to update your name and address if necessary, so we can mail you a complimentary copy of the report. Kindly return the questionnaire to Camille Henri Vaillon at DBEnforcingContracts@worldbank.org. We thank you again for your invaluable contribution to the work of the World Bank Group. Sincerely, Erica Bosio Tel.: +1 (202) Fax: +1 (202) Camille Henri Vaillon Tel.: +1 (202) Fax: +1 (202) Maksym Iavorskyi Tel.: +1 (202) Fax: +1 (202) María Adelaida Velez Tel.: +1 (202) Fax: +1 (202) DBEnforcingContracts@worldbank.org 1

2 Primary Contributor Information: Please check the box next to information you do not want us to publish. Do not publish Never Published Name Title (Mr., Ms., Dr.) [ Mr. ] First Name Last Name Position (e.g. manager, associate, partner) Profession (e.g. judge, lawyer, architect) Contributor [ Shailendra ] [Singh] [Joint Secretary] [ ] Contact details Firm name [Department of Industrial Policy and Do not publish Promotion] Website [dipp.nic.in] Do not publish address [singh.shailen@nic.in] Do not publish Phone [ ] Never Published Do not publish Fax [ ] Mobile phone [ ] Firm Address Street [ ] P.O. Box [ ] City [ ] State/ Province [ ] Zip/Postal code [ ] Country [ ] 7 IND_Delh 378 Additional Contributor(s): If there are more people whom you would like us to acknowledge, kindly send us an . Name Occupation Phone Address [title] [first name] [last name] [firm] [position] [profession] [ ] [phone] [mobile] [street] [state/province] [city/country] [title] [first name] [last name] [firm] [position] [profession] [ ] [phone] [mobile] [street] [state/province] [city/country] [title] [first name] [last name] [firm] [position] [profession] [ ] [phone] [mobile] [street] [state/province] [city/country] Paperless Option for Complimentary Report and Certificate Last year contributors saved nearly half a million pieces of paper by selecting the paperless report option. We welcome you to join us in conserving resources: Please me an electronic copy of the report and my certificate of appreciation, instead of a paper copy. Referrals: Please help us expand our list of contributors by referring us to other experts in the private or public sector (lawyers, notaries, public officials or any expert on this field) who can respond to the questionnaire. First name Last name Position Firm Address Phone [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] 2

3 1. Case Study Assumptions Two domestic companies Seller and Buyer conclude a contract for the sale of some custom-made goods. Further to such contract, Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, custom-made furniture. Upon delivery of the goods, Buyer alleges that the goods are of inadequate quality, and refuses to pay. Seller insists that the goods are of adequate quality and demands payment of the contract price. Since the goods were custom-made for Buyer, Seller cannot sell them to a third party. Following Buyer's refusal to pay, Seller sues Buyer. The court decides 100% in favor of Seller, and orders Buyer to pay the contract price. 1. Both Seller and Buyer are domestic companies, located in Delhi. 2. Seller sues Buyer to recover the amount due under the contract. The value of the claim is: INR 321, The court deciding the case is located in Delhi and is the first instance court with jurisdiction over commercial claims of INR 321, Seller fears that Buyer may dissipate assets, move assets out of the jurisdiction or become insolvent. Therefore, if such a procedure is allowed before the competent court, Seller requests and obtains attachment of Buyer s movable assets (for example, office equipment) prior to obtaining a judgment. 5. Buyer opposes the claim, which is then disputed on the merits. An opinion on the quality of the goods delivered by Seller is required and is given by an expert during the court proceedings: a. If it is standard practice in your country for Seller and Buyer to call their own expert witnesses, then each party calls one expert witness to provide an opinion on the quality of the goods delivered by Seller. b. If it is standard practice in your country for the judge to appoint an independent expert to provide an opinion on the quality of the goods delivered by Seller, then the judge does so. It is assumed that no opposing expert testimony is provided. 6. Judgment is 100% in favor of Seller. Buyer is required to pay the agreed contract price to Seller. 7. Buyer does not appeal the judgment. 8. Seller starts enforcing the judgment when the period allocated by law for appeal expires. It is assumed that Buyer has no money in his bank accounts. As a result, Buyer's movable assets (for example, office equipment) are attached and stored in preparation for a public sale. 9. A public sale is organized, advertised and held to sell Buyer's movable assets. The assets are sold and the value of the claim is entirely recovered by Seller. Definitions: for the purpose of this questionnaire, the terms below carry the following meaning: 1. Competent court means the court in Delhi with jurisdiction over commercial disputes similar to the one described in the assumptions of the standardized case. If more than one court is competent, competent court means the court that is most likely to determine the outcome of the standardized case. 2. Expert witness means a witness with the required qualifications or experience to give an opinion on whether the goods delivered are of adequate quality. Expert opinion is required and provided prior to judgment. *** Please provide your responses to the following sections taking into account the case study assumptions provided above. For your convenience, last year s answers are included in this questionnaire where available. Please note that they represent a unified answer based on all the answers we received from various contributors. *** 2. Competent Court Does the Delhi District Court have jurisdiction over the case described in Section 1, given the value of the claim set at INR 321,665? Yes Answer Comment The pecuniary jurisdiction of the Delhi District Court is upto INR 20 million If the competent court has changed, please answer all applicable questions in Sections 4, 5 and 6 assuming that the new court would hear that case.. Code To Format Page: Do not delete table.matrix > tbody > tr > td:nth-child(1) { width: 500px} 3

4 3. Reform Update Have there been any reforms since June 1 st, 2016 in domestic commercial litigation? For example: amendments to the civil procedural laws, enactment and/or implementation of new regulations, changes to the case management system, introduction of automated solutions such as e-filing, e-notifications, etc., implementation of mediation/conciliation, substantial changes in arbitration law, introduction of small claims courts, creation of a new commercial court, or appointment of new judges. If relevant, please describe the reform(s). Please include information on the date of adoption, publication and enforcement of the new law(s) or regulation(s). Answer Yes, there has been a reform since June 1 1. The Arbitration and Conciliation (Amendment) Act 2015 has brought about welcome changes via-a-vis speedy completion of proceedings. Key Amendments:- Amendment to Section 7: An Arbitration agreement contained in the form of communication through electronic means shall also be treated as an arbitration agreement in writing. Insertion of a new provision- Section 29A: The Tribunal shall ensure speedy completion of Arbitration proceedings and pass the award within a period of twelve months from the date when the arbitral tribunal enters upon the reference. However, the parties may extend such period for a further period not exceeding six months. If the award is made within a period of six months, the arbitral tribunal shall be entitled to receive additional fees as the parties agree. If the award is not made within specified period or extended period, the mandate of the arbitrator shall terminate unless the time is extended by the court. Insertion of a new provision- Section 29B: This Section provides for a fast track procedure for conducting arbitral proceedings, in 4

5 cases where the parties mutually agree for such procedure. In such cases, the arbitral tribunal consisting of a sole arbitrator shall decide the dispute on the basis of written pleadings, documents and written submission and shall not hold oral hearing. The award is to be made within a period of six months from the date the arbitral tribunal enters upon the reference. 2. The recently notified Commerical Courts Act provides for a separate set of Commercial Courts to be set up by State Governments at the District level to try suits and claims pertaining to commercial disputes of a value of at least Rs.1 crore and above. In states where the High Court exercises original civil jurisdiction, the High Courts are expected to set up Commercial Divisions to try such commercial disputes. In order to streamline the procedure of trial to be followed by the Courts in respect to a Commercial Dispute and expedite the proceedings, the Civil Procedure Code, 1908 ("CPC"), that is to be applicable to the Commercial Disputes is also be amended to the extent as specified in the schedule of the Act. Some of the important amendments are highlighted herein below:- Strict timelines for filing written statement and forfeiture of right to file written statement after completion of one twenty days of the service of summons is prescribed. Furthermore, denials in the written statement are to be made in the prescribed manner, which includes particulars of the allegation that Defendant denies but requires 5

6 the Plaintiff to prove and the ones that he admits. The Defendant is also to state reasons for denying any fact and put forward his version of event. Any party can apply for summary judgment, in respect to a claim (or part thereof) which can be decided without recording oral evidence, at any time before the issues are framed. Timely procedure for disclosures, discovery and inspection of documents are prescribed. Statement of admission and denial of all documents is to be completed within fifteen days from completion of inspections or any later date as fixed by Court. Provisions of imposing cost for frivolous suits and counter claims are provided. Concept of case management hearing, which includes framing of issues, fixing of procedure and timelines are to be followed in a suit (including setting timeline for parties/advocate to address written and oral arguments). Closure of arguments not later than six months from the date of first case management hearing are prescribed. Recording of evidence (including conducting crossexamination) on day to day basis. Affidavit of evidence of all witnesses to be led by parties is now required to be filed simultaneously. Filing of written arguments by parties is made compulsory. Pronouncement of judgment is to be completed within ninety days of conclusion of arguments. The Act also clarifies that in case of conflict with any of the provisions of CPC, as amended by this Act, with any provisions of any rule of jurisdictional High Court or any state amendment to the CPC, the provisions of CPC, as amended by 6

7 this Act, is to prevail. 3. With regard to Amendment to High Court Rules/Power of High Court to notify commercial courts, it may be noted that High Court has framed rules of procedure and guidance for filing and adjudication under the Commercial Courts Act. data/upload/publicnotices/publicn otice_jvev2nfs.pdf data/upload/publicnotices/publicn otice_jvev2nfs.pdf data/upload/publicnotices/publicn otice_nnrn41hy.pdf 4. On June 1, 2016 the Central Government notified the constiution of the National Company Law tribunal e.aspx?relid= The NCLT consolidates the corporate jurisdiction of the Company Law Board, Board of Industrial and Financial Reconstruction, the Appellate Authority for Industrial and Financial Reconstruction and Jurisdiction and powers related to the winding up, restructuring, and other provisions as vested with the High Courts. The constitution of NCLT will help in easing the burden on courts and will help companies facing issues related to winding up, mismanagement, and insolvency of businesses. Being the only tribunals for arbitrating company disputes, they will eliminate the overlap of or occurrence of conflicting rulings and will minimize the delays in the resolution of disputes. 7

8 5. The ecourts servcies is focued towards improving the justice delivery services by enhancing ICT of courts, strenghtening availability of e-services through e-filing, e- payments gateways and mobile payments. Through the ecourts service the lawyers and litigants can access a host of eservices, such as, track status of a case, view and access case orders and judgments. further through the ecourts portal the lawyers can are enabled to view forms to be submitted to the courts, view case documents and access law and regulations. Are any such reforms expected between now and June 1st, 2017? If so, please describe. 1. Yes. The Government is proposing to introduce the following reforms: 1. Introduce a chapter/provision on pretrial mediation for commercial cases in the Commercial Courts Act. 2. Reducing the specified value (i.e., the minimum threshold limit) under the Commercial Courts Act so as to enable a larger number of commercial cases to be able to get the benefit of the provisions of the Commercial Court Act. 3. The ecourt committee of the Supreme Court will frame Model High Court Rules for both civil and criminal cases. 4. The data available on the National Judicial Data Grid will now be comprehensively analysed to ascertain various trends of institution, disposal, arrears and accumulation of cases in different courts. This will help in planning court and case management. 4. Quality of Judicial Processes Index 4.1 Court Automation Electronic Filing Can the initial complaint be filed electronically through a dedicated platform within the Delhi District Court? Please answer "No" if it can only be filed by or fax. Last year: No This Year: No Comment: Electronic filing of complaints is un er active consideration and is already permitted and provided for by various regulatory commissions and 8

9 When the initial complaint is filed electronically, must a hard copy be submitted as well? Electronic Service of Process Can the initial complaint filed before the Delhi District Court be served on the defendant electronically? If so, please specify how service is carried out (by , SMS/text, fax, etc.). Electronic Payment of Court Fees Can court fees be paid electronically within the Delhi District Court? Please mark "Yes" also if payment can be made through online banking. tribubnals, such as the Central Electricity Regulatory Commission. Electronic filing of complaints at the Delhi District Court level is under active consideration and may be implemented by by the end of the year. Answer: -Click to Select- Comment: Last year: No This Year: Yes Comment: Order V, Rule 9 specifies that summons may served either by speed post or courier service or by any other means of transmission of document (including fax or electronic mail service). In pursuance of the aforementioned provision, the Delhi High Court has framed Delhi Courts Service of Processes by Courier, Fax and Electronic Mail Service (Civil Proceedings) Rules, 2010' which were notified on February 9, service is specifically provided for under Rule 12 of the said Rules. Under Rule 15 of the said Rules, even witnesses may be summoned via s. Also, any party may request the court to issue service to it via s so that it may receive the court s communication or communication from the other party to the proceeding via . High Court of Delhi has also taken an initiative of providing SMS or alert facility for information of the members of the bar and parties Last year: Yes This Year: Yes Comment: The court fee can be paid electronically. Publication of Judgments Are judgments rendered at all levels in commercial cases made available to the general public through publication in official gazettes, in newspapers or on the internet/court website? If judgments are published online, please include a link to the relevant website. S_home.html Last year: Yes This Year: Yes Comment: All Judgements are made available online on the website of the respective district court and high court eg. ml and The judgements can also be accessed 9

10 Are judgments rendered in commercial cases at the appellate and supreme court level made available to the general public through publication in official gazettes, in newspapers or on the internet/court website? If judgments are published online, please include a link to the relevant website. through the e-courts website at Last year: Yes This Year: Yes Comment: Judgements are available on the website of the respective High Court for example the judgements of the Delhi High Court are available at Delhi High Court at ( hc=31) The Supreme Court judgments are available on the Supreme Court website at ( The judgements can also be accessed through the e-courts website at 10

11 4.2 Court Structure & Proceedings Specialized Commercial Court In Delhi, is there a court, division or bench of a court dedicated solely to hearing commercial cases? What is the name of this court, division or bench? Last year: Yes The Delhi High Court has per the provisions of the Commercial Courts Act constituted a Commercial Division in the High Court to adjudicate over commercial disputes whose claim value is Rs 10 million and above. As per the current roaster at the Delhi High Court, Commercial Division consists of six benches of a Single Judge each. Hon ble Mr. Justice Manmohan, Hon ble Mr. Justice Rajiv Sahai Endlaw; Hon ble Ms. Justice Indermeet Kaur; Hon ble Mr. Justice Jayant Nath; Hon ble Mr. Justice Vibhu Bakhru; and Hon ble Mr. Justice Yogesh Khanna have been nominated to be the Judges of the Commercial Division. 'Commercial Appellate Division' has been constituted with four Division Benches, namely, DB-I, DB-II, DB-II, and DB-IV. The Hon'ble judges who are members of the said four Division Benches, as per the present roster of the Delhi High Court, have been nominated to be the judges of the 'Commercial Appellate Division'. ( udges_current.asp ) What is the jurisdictional threshold (minimum claim value) for cases to be heard by this court, division or bench? Small Claims Court In Delhi, is there a small claims court/division or a fast-track The Delhi District Court has a dedicated 'Commercial Civil Judge' whose pecuniary jurisdiction is over disputes where the claim value is upto INR 3,00,000 Cases of Commercial Nature with regard to recovery of money upto INR 3,00,000/- are heard by the Commercial Civil Judge at the District Court Level The minimum claim value for cases to be heard by the Commercial Division at the High Court level is INR 10 million Last year: Yes 11

12 procedure for small claims? A small claims court is a court with limited jurisdiction to hear cases with a maximum claim value that is relatively small. These courts usually have relaxed rules of civil procedure, relaxed rules of evidence and are characterized by the use of plain language. What is the name of this court or division? What is the law/regulation establishing such court/division or fasttrack procedure? If possible, please include a link to the law. Small Cause Court. This Court is presided over by Judge Small Court (JSCC) The Provincial Small Cause Courts Act, 1887, available at: What is the maximum monetary amount for cases to be heard by this court/division or through this procedure? Is self-representation allowed within these proceedings? INR 5000 Yes Yes. Summary Procedure is followed Summary suit or summary procedure is provided in Order XXXVII of Code of Civil Procedure, 1908 (herein after referred as CPC, 1908) whose object is to summarise the procedure of suit in case the defendant is not having any defence. If small claims are resolved through a stand-alone court or division, please mention whether simplified rules of civil procedure apply. Application & Scope This Order (XXXVII) is applicable to 1. All the suits upon bills of exchange, hundies, and promissory notes. 2. The suits wherein the plaintiff seeks to recover a debt payable by the defendant, arising either on a written contract or on an enactment where the sum sought to be recovered is fixed or on a guarantee where the claim against the principal is in respect of a debt. Pre-Trial Attachment Assuming that the plaintiff fears that the defendant may dissipate assets, move assets out of the jurisdiction or become insolvent, would the plaintiff be allowed to request and obtain attachment of the defendant's movable assets (office equipment or vehicles) within the same court? The ease of Enforcing Contracts generated by Order 37 Suit is very high since unless the Defendant is able to demonstrate that he has a substantial defence in his case, the Plaintiff is entitled to a judgment immediately Last year: Yes Comment: As per the Civil Procedure Code, if there is an apprehension that the defendant intends to dispose or move the property out of jurisdiction of the court, then the Court may first ask the defendant to either furnish security or to place the property at the disposal of the court. If the defendant fails to furnish the security within the specified time period, the court may order the attachment of the property. 12

13 Assignment of Cases How are new cases assigned to judges within the Delhi District Court? Randomly, by the president of the court/section By the president of the court/section at his own discretion Randomly, by the court's registrar/clerk By the court's registrar/clerk at his own discretion Randomly, on the basis of the subject matter or court's schedule and caseload Randomly, through an automated system On the basis of some alphabetical criteria or on a rotational basis Not randomly Other, please explain The cases are assigned by the District and Sessions Judge on the basis of the subject matter or the court's schedule and caseload Can the parties or their counsels influence the appointment of the judge or predict which judge will be assigned to their case with a high level of certainty? Gender Equality According to the applicable civil procedure law, does a woman's testimony carry the same evidentiary weight in court as a man's in all types of court cases? If not, in which kind of cases do they not carry the same weight (e.g. commercial, family, etc.)? Answer: No Comment: Last year: Yes Comment: The weight or value of the testimony is not dependent on the gender of the person providing the testimony. Answer: N.A. 13

14 4.3 Case Management Time Standards for Civil Cases, Adjournments and Continuances Last year: Yes Legal basis / comment: The Code of Civil Procedure provides the time frame for certain key events in a civil case such as 1. The defendant has to file the written statement within 30 days of the notice being served on him. 2. In case the party make an application for leave to deliver interrogatories, the court shall have to make a decision within 7 days of the application. 3. The judgement is to be pronounced within 30 days from the date on which the hearing concluded, provided that in exceptional circumstances the time period may be extended, subject to a maximum time period of 60 days from the date of conclusion of the hearing. In India, are there laws or other regulations setting overall time standards for key court events in a civil case? In addition, the Commercial Courts Act has made amendments to the Code of Civil Procedure, Section 16 of the Commercial Court Act provides that amendments shall be made to the Code of Civil Procdure Code for the purposes of the said Act The amendments pertain to imposition of costs, disclosure and inspection norms, case management hearing and other provisions for time bound disposal of commercial cases. A new chapter on Case Management Hearing (Chapter XV-A) has been introduced. As per the said Chapter, the court is required to hold the first case management hearing not later than 4 weeks from the date of filing the affidavit of admission or denial of documents by all parties to the suit. The Court is also required to fix the time limits for framing of issues, listing of witnesses, fixing the date on which the evidence has to be recorded, etc. In fixing the dates or the timelines, the Court shall ensure that the arguments are closed within 6 months from the date of the first case management hearing. It has also introduced a new provision regarding summary judgment in the CPC with respect to a commercial case 14

15 (Chapter XIII-A). This chapter comes into the picture if the courts considers that the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim. If "Yes", which of these key events have specific deadlines set by law? Please mention the specific article of the applicable law/regulation and, if possible, include a link to the material. Last year: Service of process, Filing of the statement of defense and Deadline to submit the final judgment. Service of process Legal basis: First hearing Legal basis: The amendments to the CPC by virtue of the Commercial Courts Act prescribe that the Court shall fix a case management hearing and the Court shall fix the hearing to fix the timelines regarding the date of first hearing, fixing of issues etc. While doing so, the court has to ensure that the arguments are completed within 6 months of the first court management date hearing. (Insertion of a new Chapter XV-A to the CPC) Filing of the statement of defense Legal basis: Order VIII Rule 1 CPC Completion of the evidence period Legal basis: Time for the expert to deliver his opinion Legal basis: Deadline to submit final judgment Legal basis: Order XX Rule 1 of CPC Other, please explain In case the party makes an application to deliver interrogatories, the court shall decide the application within 7 days from the day of filing of the said application. (Order XI Rule 1 CPC) Details available for all at : Are these time standards respected in more than 50% of the cases? Does the law also regulate the maximum number of adjournments or continuances that can be granted? Last year: No Comment: Last year: Yes Legal basis / comment: Order XVII, Rule 1 specifies that the court may at any time during the stage of the suit adjourn the hearings for reasons to be recorded in writing, subject to a maximum of 3 adjournments being granted to a party during the hearing of the suit. l-procedure-code/order17-rule1-codeof-civil-procedure.htm Last year: No Legal basis / comment: Are adjournments limited to unforeseen and exceptional circumstances? Please answer "Yes", if the law lists the common causes for adjournments (e.g. death of party/lawyer, appointment of an expert, attempt to reach settlement) and/or if the law explicitly states that adjournments can only be granted in exceptional circumstances. The Proviso to Order XVII Rule 1 states that the court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the Suit for reasons to be recorded in writing. Order XVII, Rule 2(b) states that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. It specifically provides that in 15

16 If rules on adjournments exist, are they respected in more than 50% of the cases? case the illness of the lawyer is the ground on which the adjournment is being sought, the court shall not grant adjournment unless it is satisfied that the party applying for the adjournment could not have engaged another lawyer in time. (c) the fact that the pleader of a party is engaged in another court, shall not be a ground for adjournment. (d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time. Last year: No Comment: Performance Measurement Mechanisms Are there reports that can be generated about the Delhi District Court to monitor the court s performance, the progress of cases through the court and ensure compliance with the time standards mentioned above? Last year: No Comment: 1 Delhi District Court prepares and makes available Court wise reports on real time pendency. These reports are not restricted/password protected. Details available at: Stats_ddc.html 2 Delhi District Court has Annual reports uploaded from time to time. This file is not restricted/password protected. Details available at: Annual_Reports.htm 3 Details on Subordinate Courts of India are also provided in the report Subordinate Courts of. India: A Report on Access to Justice This report is not restricted/password protected. 16

17 Details available at: supremecourtofindia.nic.in/subordin ate%20court%20of%20india.pdf 4 Details of pendency, disposal and volume are available at the website of National Judicial Data Grid Details available at: ain.php 5 Details of pendency, disposal and volume are also uploaded by the Information Bureau of India from time to time. Details available at: 6 Delhi High Court also releases Biennial Reports. Details available at: sp Here are some examples of cases disposals. a. District and Sessions Judge,New Delhi, PHC "Punjab National Bank Vs. gunjan Nagar" First Hearing Date: 07th January 2017, Decision Date: 16th May 2017, Case Status: Disposed off. b. Senior Civil Judge cum RC, New Delhi, PHC, "Sangeeta Electricals Vs. PCCWD/CPWD, First Hearing Date: 12th May 2017, Decision Date: 16th May 2017 Status: Case Disposed. c. District and Sessions Judge, North, RHC, District & Sessions Judge, North, "Mahender Singh Vs. Union of India & Ors. First Hearing Date: 20th April 2017 Decision Date: 01st May 2017, Status: Case Disposed. d. District and Sessions Judge, 17

18 North, RHC, ADJ "Virender Yadav Vs. Sanjay Kumar" First Hearing Date : 27th February 2017, Decision Date: 08th May 2017 Status: Case Disposed. Link: c/main.php If "Yes", which of the following reports are made available online? These reports could be part of an annual report on the judiciary. Time to disposition report (measures the time the court takes to dispose/adjudicate its cases) Clearance rate report (measures the number of cases resolved vs. the number of incoming cases) Age of pending cases report (provides a snapshot of all pending cases according to case-type, case-age, last action held and next action scheduled) Single case progress report (provides a snapshot of the status of one single case) Please provide link, if possible: 18

19 Pre-Trial Conference Is a pre-trial conference part of the case management techniques used before the Delhi District Court? A pre-trial conference is a meeting presided by the judge and designed to narrow down contentious issues and evidentiary questions before the trial. Its purpose is to discuss the possibility of settlement and to expedite the trial process while discouraging unnecessary pretrial motions or other delay tactics. Last year: No Legal basis / comment: There are provisions in Code of Civil Procedure which are relevant in the context of pre-trial hearing/pre-trial conference. The model of Pre-Trial hearing can be seen in Order X, Order XI, Order XII of the Code of Civil Procedure that provides for oral examination of the parties with regard to the admissions and denials of the allegations of facts, discovery and inspection of documents after delivery of interrogatories in writing for the examination of the opposite parties and rules for admission or denial of documents and facts of the case respectively. Order X- Provides for the examination of the parties by the trial judge before the issues are framed. The purpose of the examination under Order X is to ascertain precisely the matters which are in dispute between the parties. Order XI- Makes provision for discovery of facts by the examination of opposite party by delivering the interrogatories in writing. The rules also provide for the discovery and inspection of documents by party to a suit. Order XII- Contains rules and process of admission or denial of documents If "Yes", which issues would be discussed and which actions would take place in such a pre-trial conference? Scheduling, including time frame for filing motions and other documents with the court Examination of case complexity and projected length of trial Possibility of settlement or ADR Exchange of witness list Discovery timeline/agreement on evidence Jurisdiction and other procedural issues Narrowing down contentious issues Other, please explain Electronic Case Management System If an electronic case management system is in place within the Delhi District Court, please answer the following two questions. Which of the following actions can judges perform through the electronic system? Access laws, regulations and case-law Automatic generation of a hearing schedule for all cases on the judge's docket Send notifications (e.g. s) to lawyers Track status of a case on the judge's docket View and manage case documents (briefs, motions, etc.) Assistance with judgment writing 19

20 Semi-automatic generation of court orders View court orders and judgments in a particular case Additional features, please explain Electronic Case Management system are in place within the Delhi District Courts for use of Judges. The above actions can be performed by Judges by accessing the ecourts portal Which of the following actions can lawyers perform through the electronic system? Access laws, regulations and case-law Access forms to be submitted to the court Receive notifications (e.g. s) Track the status of a given case (future hearings, deadlines, etc.) View and manage case documents (briefs, motions, etc.) File briefs and documents with the court Access court orders and decisions on a given case Additional features, please explain Lawyers can perfom the actions through the ecourts portal available at Further case laws and regulations are available to lawyers at Forms that are to be submitted to the court can be accessed by lawyers at Also consider that to receive notifications the lawyers have to register/provide their contact details to the court. 20

21 4.4 Alternative Dispute Resolution Arbitration In India, is domestic commercial arbitration governed by a consolidated law or consolidated chapter/section of the applicable code of civil procedure encompassing substantially all its aspects? If "Yes", please indicate the name and year of publication of the law. Last year: Yes Comment: Arbitration and Conciliation in India is governed by the Arbitration and Conciliation Act, The Act lays down the procedure relating to domestic as well international commercial arbitration as well the procedure for the enforcement of foreign awards. The Act was amended in 2015 by virtue of the Arbitration and Conciliation (Amendment) Act, The Amendment streamlines the arbitration process and ensures that the arbitration proceedings are completed within a time bound period. Further, it also seeks to reduce the intervention of the courts in the arbitration proceedings by clarifying and reducing the grounds of judicial interference especially in cases of interim relief as well as in seeking the enforcement of the arbitral award. Case Law: In M. Dayananda Reddy Vs. AP Industrial Infrastructure Corporation (1994) 4 SCC (135), it was also observed that in case any contractual dispute arises between parties, the same need to be settled by an arbitrator or umpire of their own constitution or by a Court appointed arbitrator. Therefore, the course of action would be approaching an arbitrator. the award passed by the Arbitrator under the Arbitration and Conciliation Act, 1996 is final and can be challenged only on limited grounds as enumerated under Section 24 of the Act. Are valid arbitration clauses or agreements usually enforced by the courts in New Delhi? Please answer No if courts would adjudicate a case despite the presence of a valid arbitration clause or agreement. Are there any commercial disputes aside from those that deal with public order or public policy that cannot be arbitrated in India? Last year: Yes Comment: Arbitration clauses are enforced and respected by the courts in New Delhi Last year: Yes Comment: All commercial disputes can be subjected to arbitration. The Arbitration and Conciliation (Amendment) Act has amended/reduced the grounds for judicial interference on the basis of public policy. As per the Amendment Act judicial interference on the grounds 21

22 Please indicate whether any of the following disputes cannot be arbitrated: of public policy has been amended to limit it to only (i) only where making of award was induced or affected by fraud or corruption; (ii) where the award is found to be in contravention with the fundamental policy of Indian law; (iii) or basic notions of morality and justice. The only other matters which cannot be referred to arbitration include matrimonial matters, criminal proceedings, matters relating to guardianship of a minor or other person under disability, insolvency matters. NOTE: According to the methodology, A score of 0.5 is assigned if yes; 0 if no. It is important to mention here that the question is in negative form and hence the point should be provided for "No" and not 'Yes". And last year, NO marks were provided to us on stating "Yes". Disputes involving immovable property Intra-corporate disputes (e.g. disputes over decisions made by the executive bodies of a corporation or disputes involving shareholder arrangements). Intellectual property disputes Finance and banking activities (including securities transactions) Disputes related to insolvency, bankruptcy or liquidation of a company Employment disputes Other, please explain The well-recognised examples of nonarbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation, restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction (vii) cases arising out of Trust Deed and the Trust Act Details available at: 1. Booze Allen & Hamilton Inc. v SBI Home Finance Ltd. and Ors (2011) 5 SCC 532 The Supreme Court carved out six categories of cases which are not capable for being decided by private arbitration under the Arbitration Act 2. Shri Vimal Kishor Shah & Ors v Mr. Jayesh Dinesh Shah & Ors CIVIL APPEAL NO.8164 OF 2016 (ARISING OUT OF SLP(C) No of 2013) In this case the Supreme Court added one more category in the list (vii), namely, cases arising out of Trust Deed and the Trust Act, Voluntary Mediation / Conciliation Is voluntary mediation/conciliation available in India? Please answer Last year: Yes 22

23 Yes only if the parties do not have to participate in the process unless they want to. In India, is mediation/conciliation governed by a consolidated law or consolidated chapter/section of the applicable code of civil procedure encompassing substantially all aspects of mediation/conciliation? If Yes, please indicate the name and year of publication of the law. Are there financial incentives for parties to attempt mediation/conciliation (i.e. refund of court filing fees, income tax credits, etc.). Comment: It is pertinent to note that under Section 89 of the Code of Civil Procedure, 1908, if it appears to the court that there exists elements of a settlement which may be acceptable to the parties, the court may refer the matter for (a) arbitration; (b) conciliation; (c) judicial settlement; and (d) mediation. Voluntary mediation/conciliation is available in India under the Arbitration & Conciliation Act Parties to a dispute can voluntarily resort to mediation/conciliation for settlement of disputes. Last year: Yes Comment: Section 61 to 81 of the Arbitration and Conciliation Act, 1996 lays down the procedure relating to concilation/mediation of disputes. ACT/1996/The%20Arbitration%20and% 20Conciliation%20Act,% pdf Last year: No Comment: Section 16 of Court Fee 1870 states that in case the court refers the dispute to any of the modes of settlement provided under Section 89 of the CPC, then the plaintiff shall be entitled to the refund of the full amount of the court fee. The fee will be refunded once the matter is settled through any of the alternate modes of settlement. Amendment to the Court-Fees Act, 1870 in its application to Delhi has been affected. The relevant act is titled as The Court-Fees (Delhi Amendment) Act, Through this act Section 16A has been inserted which relates to the Refund of Court fees on settlement before hearing. ification/2011/2011_4.pdf 23

24 5. Time estimates The following section includes questions relating to time estimates for different stages of a commercial case. In light of your experience with cases comparable to the standardized one, please indicate the number of calendar days that would usually be necessary in practice to resolve the standardized case. If you updated the competent court in Section 2, please provide time estimates for the new court below Filing and service phase This section measures the time it would take between the moment Seller (the plaintiff) decides to sue and the moment Buyer (the defendant) is served in the Delhi District Court (assuming that both parties are domiciled in Delhi). Before filing a lawsuit, the Seller tries to obtain payment out of court through a non-litigious demand letter. How long would this process take? In your estimate, please include the time to prepare the letter and the deadline that would be provided to the Buyer to comply. Under the case study described in Section 1, it is assumed that the Buyer will not comply. How long would a lawyer take to write the initial complaint and gather all supporting documents needed for filing (including authenticating them, if required)? How long would it take to file the initial complaint with the court and serve the defendant? In your estimate, please include the processing time at the court s registrar and the waiting periods between unsuccessful attempts to serve the claim on the defendant, if more than one attempt is usually required. What are the main causes of delay during this phase? Answer 15 days 2 days 15 days Difficulties in locating the defendant for purposes of service Slow service by bailiff, attorney or other Unavailability of attorney Inefficient postal service Obtaining information from registrar's office (date of hearing, pre-assessment of the complaint, etc.) Other, please explain Extensive and time consuming material prepared by Attorney. Last year This year Comment In light of the above, is last year's estimate for the entire "filing and service" phase still accurate? 20 calendar days Yes 5.2. Trial and judgment phase This section measures the time it would take for the judgment to be rendered once the claim has been filed with the court and served on defendant. How long does it take, in practice, between the moment the case is filed and the moment a pre-trial conference is held? If pre-trial conferences do not take place in your country, please proceed to the next question. How long does it take, in practice, between the moment the case is filed and the moment the first hearing is held? If a pre-trial conference does take place, only mention the time from the moment the pre-trial conference is held and the moment the first hearing is held. How many hearings would be required, in practice, to resolve the standardized case study? When a hearing is postponed, or when more than one hearing would be necessary to resolve the case, how long would the parties have to wait for the next hearing? How long would an expert usually take in practice to deliver his or her opinion? Answer N.A. 1-2 days 2 days 5 days Expert opinions are not very common. In case the claim value is low, neither party 24

25 How long would the judge take, in practice, to issue a written final judgment once the evidence period has closed? What is the time limit for appeal in India? What are the main causes of delay during this phase? prefers seeking an expert opinion. 10 days 90 days Backlog of cases Frequent adjournments Waiting periods between hearings Limited availability of experts and delays caused by the expert's activity Other, please explain Extensive written and oral submissions by parties Last year This year Comment In light of the above, is last year's estimate for the entire "trial and judgment" phase still accurate? 1,095 calendar days What can be the fastest estimate in practice for the trial and judgment phase? Please explain the main drivers of the difference with the current estimate. No The entire trial and judgment may be completed within days 31 days. The entire trial and judgment may be completed within 31 days This estimate will apply if the timeline/prcocedur e prescribed in the CPC is adhered to and no unecessary adjournments are granted, then the entire trial can be completed within the said days. Here are some illustrations: a. District and Sessions Judge,New Delhi, PHC "Punjab National Bank Vs. gunjan Nagar" First Hearing Date: 07th January 2017, Decision Date: 16th May 2017, Case Status: Disposed off. b. Senior Civil Judge cum RC, 25

26 What can be the longest time in practice for the trial and judgment phase? Please explain the main drivers of the difference with the current estimate. New Delhi, PHC, "Sangeeta Electricals Vs. PCCWD/CPW D, First Hearing Date: 12th May 2017, Decision Date: 16th May 2017 Status: Case Disposed. c. District and Sessions Judge, North, RHC, District & Sessions Judge, North, "Mahender Singh Vs. Union of India & Ors. First Hearing Date: 20th April 2017 Decision Date: 01st May 2017, Status: Case Disposed. d. District and Sessions Judge, North, RHC, ADJ "Virender Yadav Vs. Sanjay Kumar" First Hearing Date : 27th February 2017, Decision Date: 08th May 2017 Status: Case Disposed. Link: rts.gov.in/njdg_ public/main.ph p 50 days. The delay may be on account of extensive submissions by parties. 26