#Territorial Jurisdiction under CPC

[prolawctor]

Commencement and Application of the CPC

The Code of Civil Procedure (CPC) is a vital piece of legislation in India, laying down the procedural framework for civil litigation. Understanding the commencement and application of the CPC is essential for law students and legal professionals alike. This article explores the origins of the CPC, its key provisions, and its application in civil proceedings, providing a comprehensive overview…

[mnmlawpartners]

Comprehensive Guide on Divorce For NRIs in India

So if you're an NRI (Non-Residential Indian) contemplating divorce. I get it, stuff happens. But the big question here is "Does India recognize divorces granted in another country?" In this blog Let's explore divorce for NRI in India.

Can an Indian Marriage Be Divorced in Another Country?

Yes, The divorce petition can be filed and resolved outside India, even if the marriage occurred within the country. Under Section 13 of the Civil Procedure Code (CPC), foreign judgments hold validity and conclusiveness in India, typically adhering to this principle. However, there are exceptions where certain foreign judgments might not be acknowledged within India.

Indian law does recognize divorces granted outside the territory, but only if they're mutual. But still, if your spouse contests the divorce, then your foreign decree might not hold up in an Indian court. So, if you're planning to get divorced in another country, make sure it's a team decision.

Process of Divorce for NRIs in India

The process of divorce for NRI in India typically involves the following steps:

Jurisdiction Determination: Establish the appropriate jurisdiction for filing the divorce petition based on factors like the place of marriage, current residence, or location of the spouse.

Grounds for Divorce: Identify and confirm valid grounds for divorce recognized under Indian law, such as cruelty, desertion, adultery, or mutual consent.

Hiring Legal Representation: Engage a divorce lawyer experienced in handling international divorce cases to represent and guide through the legal proceedings.

Filing the Petition: File the divorce petition in the appropriate family court in India, providing necessary documents and supporting evidence.

Service of Notice: Serve the notice of the divorce petition to the spouse residing abroad, adhering to legal procedures for international service.

Court Hearings: Attend court hearings as required and present arguments and evidence supporting the divorce claim.

Settlement or Trial: Pursue either a settlement through negotiations or mediation or proceed to a trial if the divorce terms cannot be agreed upon.

Decree of Divorce: Obtain the final decree of divorce from the court, legally terminating the marital relationship.

Post-Divorce Proceedings: Address post-divorce matters such as asset division, alimony, child custody, and visitation rights, if applicable.

International Recognition: Ensure the recognition and enforcement of the Indian divorce decree in the respective country where the NRI resides, if necessary, through legal procedures

What are the rules for divorce for NRIs in India?

The rules for divorce for NRIs (Non-Resident Indians) in India involve:

Filing a divorce petition with the court is mandatory for the involved parties.

Prior agreement on child custody and the maintenance amount is necessary before petition submission.

The case adjourned for six months following the initial plea presentation, termed the first motion.

Post this duration, both parties must attend court to affirm their mutual divorce, finalizing the process.

Any party has the option to withdraw or revoke the divorce petition within six months before the second motion.

How long is the process of mutual divorce for NRI in India?

The duration of mutual divorce for NRIs (Non-Resident Indians) in India varies but typically takes around 6 to 18 months. Factors influencing the timeline such as court proceedings, mutual agreement settlement, document submission, and any complexities within the case. However, this timeframe may fluctuate based on the specific circumstances, court workload, and procedural requirements during the divorce process.

Can a NRI file for contested divorce in India?

Yes, an NRI (Non-Resident Indian) can file for a contested divorce in India. However, the process varies in duration and complexity, typically spanning from 1 to 3 years or more. The length of a divorce for NRI can depend on several things, like how many times you've got to go to court, what evidence comes up if you have a lawyer, and just how tangled the whole situation is. Contested divorces involve court proceedings where disagreements on grounds like cruelty, adultery, or desertion are contested and adjudicated upon by the court

Looking for Details on Divorce for NRI? Contact M&M Law Partners

Navigating through the treacherous waters of divorce can feel like trying to salsa dance on roller skates. If the journey through divorce is overwhelming, remember it's okay to struggle. This is where the star M&M Law Partners comes into the picture.

At M&M Law Partners, we have the best civil lawyers in Delhi who are experts in Divorce For NRI’s in India. Their experience in NRI divorces is as vast as the Pacific, and they'll steer you safely through this test. A life preserver in the wild sea of divorce, if you will.

[bhattandjoshiassociates-blog]

Institution of a Suit: A Comprehensive Guide to Provisions and Jurisprudence

Introduction The institution of a suit marks the initiation of a civil proceeding in the Indian legal system. Governed by the Civil Procedure Code, 1908 (CPC), it is a crucial step for parties seeking legal remedies. This article aims to provide an in-depth understanding of the relevant provisions and landmark judgments concerning the institution of a suit. Legal Framework: Provisions in the CPC Section 26: Institution of Suits  Section 26 of the CPC, 1908, stipulates that every suit shall be instituted by presenting a plaint. The plaint must be in duplicate, supported by an affidavit, and duly verified by one of the parties or someone acquainted with the facts of the case1 . Sections 79 and 80: Suits by or Against the Government Sections 79 and 80 of the CPC, 1908, lay down the procedure for instituting suits by or against the Government. Section 79 specifies the authority to be named as the plaintiff or defendant, while Section 80 mandates a two-month notice period before the institution of such suits2. Order VI: Pleadings over Institution of a Suit Order VI of the CPC outlines the general rules for pleadings, which form the basis for instituting a suit. It emphasizes the need for stating material facts and not evidence3. Landmark Judgments for Institution of a Suit Razia Begum vs Shabjadi Anwar Begum, AIR 1958 SC 886 This case laid down the principles for exercising power under Section 26 of the CPC. It clarified the scope and limitations of the court’s jurisdiction in the institution of suits4. Vishwanath Satwaji Gaikwad vs Laxman s/o Abaji Kavale & Others, AIR 2000 Bom 307 This case elaborated on the scope of Order IX, Rule 5, particularly concerning the dismissal of suits and the remedy available to the plaintiff5.   Conclusion The institution of a suit is a complex process governed by various provisions of the CPC, 1908. Understanding these provisions and their interpretation by the courts is crucial for the effective institution of a suit. Parties must adhere to these legal norms to ensure that their suits are instituted correctly, thereby paving the way for a fair trial. References - Section 26 of The Code Of Civil Procedure, 1908 - Sections 79 and 80 of The Code Of Civil Procedure, 1908 - Order VI of The Code Of Civil Procedure, 1908 - Razia Begum vs Shabjadi Anwar Begum, AIR 1958 SC 886 - Vishwanath Satwaji Gaikwad vs Laxman s/o Abaji Kavale & Others, AIR 2000 Bom 307 Provisions of Law Sr. No. Provision / Section of Law Exact text of the Provision / Section of Law 1 Section 26 of the CPC, 1908 “Every suit shall be instituted by presentation of plaint in duplicate supported by affidavit and duly verified by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.” 2 Sections 79 and 80 of the CPC, 1908 “Section 79: Suits by or against Government.- In a suit by or against Government, authority to be named as plaintiff or defendant as case may be shall be- (a) in case of Central Government- (i) where it relates to railway- The Union Of India; (ii) where it relates to any other matter- The Secretary To The Government Of India; (b) in case State Government- The State; © in case Union Territory- The Administrator thereof acting within scope his authority.” “Section 80: Notice.- No suit shall be instituted against Government (including Government Of State Of Jammu And Kashmir) or against public officer in respect any act purporting to be done him his official capacity until expiration two months next after notice in writing has been delivered to or left at office- (a) in case suit against Central Government where it relates to railway- General Manager that railway; (b) in case suit against Central Government where it relates to any other matter- Secretary To That Government; © in case suit against State Government- Secretary To That Government or Collector District; (d) in case suit against public officer- That Officer; stating cause action, name description plaintiff, relief which he claims; and plaint shall contain statement that such notice has been so delivered or left.” 3 Order VI of the CPC “Order VI: Pleadings Generally.- 1. Pleading.- "Pleading" shall mean plaint or written statement. 2. Pleading to state material facts and not evidence.- (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words. 3. Forms of pleading.- The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings. 4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. 5. Further and better statement, or particulars.- A further and better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms, as to costs and otherwise, as may be just. 6. Condition precedent.- Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and subject thereto an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.” Learn more: - indiacode.nic.in - indiacode.nic.in - lawyersclubindia.com - aaptaxlaw.com - old.amu.ac.in - indiacode.nic.in - indiacode.nic.in - lawyersclubindia.com - lawrato.com - aaptaxlaw.com - taxguru.in - aaptaxlaw.com - blog.ipleaders.in Read the full article

[letscomply]

Court Jurisdiction for Recovery of Money | Recovery Services

COURT JURISDICTION FOR RECOVERY OF MONEY

court jurisdiction for recovery of money- In a general way, a suit is nothing but the proceedings which took place due to some dispute arises between two or more parties.

The basic requirements to file a suit must be –

1.   To determine the place of suing.

2.   Compliance with the essentials of the suit.

3.   The frame of suit.

4.   Instituting of the suit.

It is advisable to check whether the suit falls under category barred under section 9 of the Code of Civil Procedure before determining the jurisdiction of Court. So, whenever persons fail to solve a dispute among themselves, they can approach the Court by filing a suit. It is called the institution of the suit.

The place of suing is the venue of the trial. All categories can be classified under courts of first instance and appellate courts.

Section 15 to 20 deals with the venue of the trial.

Section 9 states that courts shall have jurisdiction to try all kinds of suits that are of Civil nature except suits of which their cognizance is either expressly or impliedly barred.

If the suit is barred under Section 9, there is no institution of the suit in any Civil Court. Section 15 of CPC, every suit shall be instituted in the Court of the lowest grade competent to try it.

What is Pecuniary Jurisdiction?

Generally, a court(s) accepts the valuation of the suit as determined by the plaintiff but in some case whenever the plaintiff overestimated or underestimated the amount, then the Court shall evaluate the amount again.

Territorial Jurisdiction

It can be divided into the following –

1.   a) Suits concerning immovable property

2.   b) Suits concerning movable property

3.   c) Suits concerning compensation for the wrong

4.   d) Other suits

Immovable Property (Section 16 to 18)

Section 16(a) to (e) deals with the matter of immovable property. It includes-

1.   a) Recovery of immovable properties with or without rent or profits.

2.   b) Partition of immovable property.

3.   c) Sale, foreclosure, or redemption in the case of a mortgage of or charge upon the immovable property.

4.   d) Determination of rights to or interest in the immovable property.

5.   e) Compensation for wrong to immovable property.

If the given property falls under the jurisdiction of more than one court, where should the suit be filed?

Then Section 17 comes to the rescue by stating that in any court(s) the said case may be filed if it falls under the pecuniary jurisdiction of the Court.

The relief for compensation is independent of its own and has nothing to do with other relief’s regarding immovable property under Section 16(a) to (d).

Section 19 – Movable Property

It states that a suit for compensation for any wrong done to any person or to his/her movable property if the said was done in the local limits of the jurisdiction of 1 court where the defendant resides, the suit can be filed at the option of the said plaintiff in either of the said courts.

Example – If ‘X’ lives in West Bengal carries his business of transportation of goods to be transferred from Bangalore. ‘Y’ ordered some goods to be transferred from Bangalore to Maharashtra but in the middle, that is, Lucknow, the goods were misplaced. Now, ‘Y’ can sue ‘X’ at West Bengal as this is his place of residence, may be at Bangalore as this is his place of caring business, maybe Lucknow as the wrong was committed here. Court Jurisdiction For Recovery Of Money

Click here for- Filing A Suit For Recovery Of Money Under The Limitation Act

Essentials of Suit

1.   Opposing party/parties

2.   Subject-matter in dispute

3.   Cause of action

4.   Relief

Order 1 Rule 1

It deals with the joinder of plaintiff. There are certain conditions to be fulfilled-

1.   a) Right(s) to relief with respect to transaction or series of facts or transactions are alleged to be there in such persons, whether jointly, severally or in the alternatives; and

2.   b) In suits, question of law or fact would arise.

Rule 3

It states about who can be joined as defendants. There are again certain conditions to be fulfilled-

1.   a) Right(s) to relief with respect to transaction or series of facts or transactions are alleged to be there in such persons, whether jointly, severally or in the alternatives; and

2.   b) If separate suits filed then question of law or fact would arise.

Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in one suit.

There lies a concept of Necessary and Proper Party. A necessary party is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed.

A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceedings. Court Jurisdiction For Recovery Of Money

Rule 8 – Representative Suit

It is a suit filed by or against one or more persons on the behalf of themselves and other having the same interest in the suit.

When several people having similarly interest in any suit then any one of them can move a suit on behalf of other.

Conditions                

1.   There should be large numbers of parties.

2.   They must have some interest in the suit.

In, T.N. Housing Board Vs. T.N. Ganapathy (1990) 1 SCC 608, residential buildings were given to the applicants of low-income groups. After all the process, excess demand was made by the board. The allottees challenged the demand by filing a representative suit.

It was challenged as demand notices issued separately. The Court held that all has the same interest and thus, suit was maintainable.

3.   Permission of/by Court.

4.   Notice shall be given to every parties who would be bound by the decree.

Order 1 Rule 9 – Non-Joinder and Misjoinder of parties to any suit in case a person who shall be necessary or proper party to any suit has not been joined this is called non-joinder of parties.

When the plaintiff frames the suit, it is necessary to test the case on-

1.   a) Limitation Period

2.   b) Res Judicata and Res Subjudice

Joinder of Claim

Rule 4 and 5 deal with the same. It is for the recovery of immovable property, a plaintiff is not entitled without the leave of the Court, to join any claim.

Exceptions

1.   Claims for profits or arrears of rent of the property claimed.

2.   Claims for damages for breach of contract under which property or ay part of is held.

3.   Claim for which relief sought is based on the same cause of action.

Rule 5 deals with suit by or against 3 classes of persons- Executors, Administrators and Heirs.

Joinder of the cause of action (Rule 3)

It includes the following situations-

1.   One plaintiff one defendant and several cause of action. In such a situation the plaintiff can unite the several causes of action in one case.

2.   Joinder of plaintiffs & cause of action- when 2 plaintiffs have cause of actions against the same defendant, then the cause of action can be joined.

3.   The common question of law and fact should be there.

4.   If there are several defendants and one plaintiff having several causes of action, then it can be joined if the defendant is interested.

Institution of Suit

Plaint means a private memorial tender to the Court in which a person sets forth his cause of action.

Conclusion

To check which is the exact court jurisdiction, may elements have to be taken care of. Even after the jurisdiction is known various other factors are involved which makes this process very important as well as crucial. In case the suit is filed in the wrong jurisdictional Court, the entire case can be dismissed, so every step needs to be taken care of with due precaution.

Click here for- Society Law

For More Information click here: https://www.letscomply.com/court-jurisdiction-for-recovery-of-money/

Contact Us:

+91-97-1707-0500

info@letscomply.com

https://www.letscomply.com/

[juudgeblog]

Section 20 of Code of Civil Procedure and its interplay with Section 134 of the Trademark Act

This article is written by Pranav Gupta, Law clerk cum research assistant to Justice Sanjay Kishan Kaul, Supreme Court of India.

Introduction

The law for institution of the civil suit for infringement of the trademark is well envisaged under section 134 of the Trade Mark Act, 1999. This section confers jurisdiction to the ‘District Court’ to entertain the suit for the alleged infringement of the registered trade mark, relating to any right in a registered trade mark or for a passing off arising out of the ‘use’ by the infringer of any trade mark, implying that the registered proprietor and registered user of the ‘mark’ can institute a suit where he actually and voluntarily resides, or carries on business, or personally works for gain. 

The position with respect to the institution of the trade mark infringement suit under the provisions of the Code of Civil Procedure, was reiterated recently by the Hon’ble Delhi High court in the celebrated case of Burger King Corporation vs Techchand Shewakramani & Ors, where the issue that came up for consideration of their lordship was with respect to the entertainment of the suit under section 20 of the civil procedure code and section 134 of the Trade Mark Act, where there is no credible and strong apprehension at the time of filing of the suit and cause of action is quia timet cause of action passed on an imminent lounge of franchise by the Defendants in Delhi.

JUDICIAL DECISION

The factual matrix of the case, presented, before their lordship, were that the plaintiff filed the suit seeking permanent injunction restraining infringement of trademark, passing off, damages, in respect of the trademark ‘Burger King’ and ‘Hungry Jack’s’, both as a trademark, as also part of their corporate names. Whereas all the defendants are based out of Mumbai, Maharashtra. The Plaintiff is a U.S. based company. The plaintiff filed the suit before the Delhi high court under two separate laws, first under section 134 of the Trade Mark Act, 1999 and section 20 of the CPC, on the premise that numerous agreements and contracts had been entered into by him with various parties within the territory of New Delhi in furtherance of the imminent launch of its Burger King franchisee outlet in New Delhi, and that there was a strong and credible apprehension that the defendants will expand their operations under the impugned trading style/trade mark of ‘Burger King Restaurants’ in New Delhi and that there existed a threat that the Defendants will use the impugned trade-marks trade names within the jurisdiction of this Hon’ble Court.

Click here

The learned counsel for the defendants submitted that the courts of Delhi have no jurisdiction to entertain this suit, as no cause of action arose in Delhi, since all the defendants are independent and distinct entities and have no relation with each other. Moreover, the subsequent events, after filing of the suit, cannot confer the jurisdiction to the court to entertain the suit. To buttress the argument, the defendant placed reliance on the case of Indian Performing Rights Society Ltd. v. Sanjay Dalia, followed by Ultra Home Construction Pvt. Ltd. v. Purshottam Kumar Chaubey and others, to submit that the Delhi high court had no jurisdiction, since the defendants actually and voluntarily resides in Mumbai and not in Delhi.

The Plaintiff submitted that the defendants are connected with each other and have a website which is interactive. The website of Defendant No.5 which is registered in the name of Defendant No.3 lists Defendant No.7 as its property, and uses the impugned mark ‘Burger King’, and was said to be expanding their operations into Delhi, as is clear from the various documents and agreements placed on record and that the apprehensions are not just imminent but in fact real, which is very much evident from the launching of the Burger King carts and outlets in Delhi, per various agreements filed by the Defendants.

Their Lordships, in this case, explain how, if the suit is preferred alleging the infringement of trade mark under Section. 20 of the CPC, what constitutes cause of action in such cases, was the “use of the marks” constituting an infringement or a passing off action. Their lords defined the term “use” placing reference to Kerly’s Law of Trade Mark and Trade Names and to the provision of the trade mark laws and went on to explain that it is the ‘use of the mark’ or ‘use of a mark in relation to goods’, which could be either in a physical or in any other relation whatsoever to such goods, where “In relation to” refers to advertising, promotion, publicity, etc.

In addition to actual sale of goods and providing services, if a person advertises his or her business under the mark in a territory, promotes his or her business under the mark in a territory, or for example, invites franchisee queries from a particular territory, manufactures goods in a particular territory, assembles goods in a particular territory, undertakes printing of packaging in a particular territory, exports goods from a particular territory, it would all constitute ‘use of a mark’.

Moreover, the objection of the defendant that the subsequent events after filing of the suit in the present case, i.e, the quia timet passing off actions qua the opening of a franchise in Delhi, was expounded by their lords after placing reliance on Laxmikant V. Patel v. Chetanbhat Shah & Ors, by holding that passing off is not to be determined by the facts as they exist on the date of filing of suit, but can be ascertained keeping in view the future expansions of the business, that may cause irreparable loss to the plaintiff-registered owner.

Therefore, the court rightly held that section 134 of the trade mark and section 62 of the copyright act are in addition to and not exclusion of section 20 CPC so far as jurisdictional forums are concerned, and if the plaintiff is successful in making out the cause of action within the jurisdiction of the court under section 20 CPC, he is not required to make reference to Section 134 of the Trade Mark Act.

Conclusion

The section 20 of the code of civil procedure is common law provisions, which provides the rights to the plaintiff to institute suit proceedings at a place where the defendant(s) are actually and voluntarily residing or carry on the business for gain. The intendment of the legislators behind section 20 of CPC is to provide a forum to the plaintiff to put forth his grievance against the defendant in whose local jurisdiction, the cause of action has arisen either wholly, or in part.

The provisions of section 134 of the Trade mark Act were enacted under the umbrella of Section 20 of CPC, which provides almost similar rights to the plaintiff with respect to the jurisdiction of the forum where the plaintiff (registered owner or registered user) can file a suit at his own place, or where he carries on the business for gain.

This forum so provided in section 134 is added to the forum so envisaged under section 20 of the CPC. The scope of applicability of section 20 cannot be garbed under the shadow of section 134 of Trade mark Act. Section 20 of CPC being procedural in nature, shall always prevail over the substantive law and thus goes hand in hand with Section 134 of the Trade Mark Act. Justice is the goal of jurisprudence – processual, as much as substantive.

Their Lordships in their obiter dicta, opined the importance of admission/denial in the commercial matters, regulated by the Commercial Courts Act. Admission/denial in literal meaning means either admits or denies the genuineness or validity of the documents so provided by the opposite parties. The main intention of the legislators in inserting provisions for admission/denial by way of an affidavit is to narrow down the triable issues and prevent prolonged trials and to deny only those documents whose existence, genuinity or authenticity is disputed. Their lordship held that documents such as trademark certificates, copyright certificates, legal notices, replies, e-mail correspondence, documents issued by the government, ought not to be permitted to be denied as such denials are bereft of merit and prolong the trial. Admission/denials affidavit ought to be fair, bona-fide and not prolong the trial by denying document just to harass the opposite parties into proving each and every document with certified copies/original.

The post Section 20 of Code of Civil Procedure and its interplay with Section 134 of the Trademark Act appeared first on iPleaders.

Section 20 of Code of Civil Procedure and its interplay with Section 134 of the Trademark Act syndicated from https://namechangersmumbai.wordpress.com/

[marymosley]

Enforcement of Foreign Judgements in India

1.     Introduction

This paper aims to discuss the binding nature and the enforceability of foreign judgements in India. It also studies how the judgement passed by a foreign court creates res judicata or the rule of estoppel. Section 2(6) of the Indian Code of Civil Procedure, 1908 (CPC) defines a foreign judgement as a judgement of a foreign court. A foreign court is defined by Section 2(5) of the CPC as a court situated outside India and not established or continued by the authority of the Central Government. CPC dictates the procedure for the enforcement of foreign judgements in India and requires the judgement or decree passed by the foreign court to be conclusive in nature and it should have been decided on the merits of the case by a court of competent jurisdiction. Section 13 of the CPC underlies the principle of res judicata and any judgement passed by a foreign court can be enforced in India and will act as res judicata between the subject parties.

  Provisions under the Civil Procedure Code on foreign courts and foreign judgements:

a)     Section 2(5) – Definition of Foreign Courts

b)    Section 2(6) – Definition of Foreign Judgements

c)     Section 13 – When foreign judgement not conclusive

d)    Section 14 – Presumption as to foreign judgements

e)     Section 44 & 44A – Enforcement of judgements

     2.     Binding Nature of Foreign Judgements

Section 13 of the CPC clearly says that a foreign judgment shall be conclusive/binding as to any matter which has been directly adjudicated upon between the parties except under certain circumstances which have been specified in this section. In the case of Brijal Ramjidas v. Govindram Gordhandas Seksaria[1], the Supreme Court held that Section 13 speaks not only of judgement but any matter thereby directly adjudicated upon.

Foreign courts would have jurisdiction in the following circumstances:

i. Where a person is the subject of the foreign country in which the judgement has been obtained;

ii. Where he was a resident in the foreign country when the action was commenced and the summons was served on him;

iii. Where the person in the character of the plaintiff selects the foreign court as the forum for taking action in which forum he issued later;

iv. Where the party on summons voluntarily appeared; and

v. Where by an agreement, a person has contracted to submit himself to the forum in which the judgement is obtained.

  3.     Foreign Judgements When Not Binding

Section 13 of the Code holds a foreign judgement to be conclusive except under the six circumstances which have been specified in this section.

i.        Where it has not been pronounced by a Court of competent jurisdiction:

For a judgement passed by a foreign court to be conclusive and binding, the dispute between the parties must be adjudicated by a Court of competent jurisdiction. It is a basic principle of law that a judgement passed or any matter thereby adjudicated upon by a court which has no jurisdiction is null and void. This point has been established in the case of Gurdayal Singh v. Raja of Faridkot[2].

It is also to be noted that no court has jurisdiction to pass any judgement or decree with regard to any immovable property in a foreign state.

  ii.      Where it has not been given on the merits of the case:

As it has been stated earlier, a foreign judgement creates res judicata between the parties to a claim. However, for res judicata to apply, the judgement by the foreign court must have been given on the merits of the case. A case is said to be decided on the merits when the judge takes all the evidence into consideration in the absence of any technical or emotional bias and decides what is right or wrong after thorough examination of the case. Thus, the dismissal of a suit owing to the non-appearance of the plaintiff or when a decree has been passed owing to the default of the defendant in furnishing security, such judgements are not on merits. However, it needs to be noted that a decree being ex parte does not necessarily mean that it was not on merits.

  iii.    Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law in cases in which such law is applicable:

When a judgement passed by a foreign court is based upon an incorrect legal view or in defiance of Indian laws where such laws are applicable, it is not conclusive and the matter adjudicated therein is not enforceable in India. Thus, when a suit is filed in England for the breach of a contract formed in India and the English Court wrongfully applies English law, it is to be noted that this situation is covered by the clause being discussed as it is a fundamental principle of private international law that the rights and liabilities of the parties to a contract are determined by the place of contract.

  iv.     Where the proceedings in which the judgement was obtained are opposed to natural justice:

Clause (d) of Section 13 requires the judgement passed by a foreign court to be in observance of proper judicial procedure. Any judgement or decree passed in ignorance or violation of the principles of nature justice is null and void. Thus, when parties to the dispute are not given reasonable notice or when a party is not given equal opportunity to present its case or when the authorities involved do not act in good faith or impartial/unbiased manner, such a judgement is not conclusive as it violates the basic requirements of the principle of natural justice.

However, it is to be noted that the word ‘natural justice’ in this clause refers to the irregularities in the procedure rather than the merits of the case. Thus, a foreign judgement by a competent court is conclusive as long as it adheres to the correct judicial procedure even if it is pronounced on a wrong legal view or evidence. Thus a foreign judgement is not open to criticism by this clause if the principles of natural justice have been complied with.

  v.     Where it has been obtained by fraud:

It is a fundamental principle of law that a judgement obtained by fraud is not conclusive, irrespective of whether it was passed by a domestic court or a foreign court. Although it is not possible to show that the court was ‘mistaken’, it can however be proven that the court was ‘misled’. In other words, a foreign judgement cannot be set aside on the ground that it was wrongly decided but the clause allows the judgement to be set aside on the ground that the court was tricked into the judgement.

  vi.     Where it sustains a claim founded on a breach of any law in force in India:

A foreign judgement in breach of the laws in force in India is not conclusive and it considered to be null and void. The objective of this clause is to ensure that no foreign law can offend the public policy of our country. Thus, a decree for divorce which has been passed in a foreign court cannot be enforced in India if Indian law does not approve of such divorce.

  4.     Enforcement of Foreign Judgements

i.        By instituting a suit on such foreign judgement:

A foreign judgement is not enforceable in our country unless such decision is given in the form of a decree of the court of our country. Thus, a foreign judgement can be enforced by filing a suit on such judgement. The suit must be filed within three years from the date of the judgement and in such a suit, the court shall not go into the merits of the case and any matter adjudicated by the foreign court therein shall be conclusive.

  ii.      Execution Proceedings:

Section 44A of the Act provides that when a certified copy of a decree from any of the superior courts of any reciprocating territory is filed in a District Court, it shall be executed in India. It is open to the defendant to file any objections open to him/her under Section 13 of the Act when the foreign judgement is sought to be enforced under Section 44A. It is to be noted that the judgement must comply with all the conditions specified under Section 13.

The term ‘reciprocating territory’ in Section 44A includes United Kingdom, Singapore, Bangladesh, UAE, Malaysia, Trinidad & Tobago, New Zealand, The Cook Islands (including Niue) and The Trust Territories of Western Samoa, Hong Kong, Papua and New Guinea, Fiji and Aden.

  5.     Currency Conversion Rate

In a foreign decree, the amount awarded is generally in foreign currency. When the decree is enforced in India, the award must be converted into Indian currency and this leads to confusion as to which date to use for the calculation for the conversion of the currency. This point was addressed in the case of Forasol v. ONGC[3]. It was held that the date of the decree should be used for calculation.

[1] (1943) 45 BOMLR 358

[2] (1895) ILR 22 Cal 222

[3] 1984 AIR 241

The post Enforcement of Foreign Judgements in India appeared first on Legal Desire.

Enforcement of Foreign Judgements in India published first on https://immigrationlawyerto.tumblr.com/

[postolo]

Decree of Divorce Granted by a Foreign Court and its Maintainability in India: A Critical Analysis

Efficacy of Foreign Decree of Divorce

We are in some context or the other confronted with the question as to “how good is a decree of divorce granted by a foreign court with regard to a Hindu couple married in India?” This question is becoming a familiar question with all of us.

The foremost answer that would surface with us would be, that, the Hindu couple residing/working in a foreign land ought to be governed by the matrimonial laws in force at that place. As a corollary, the decree of divorce granted by the foreign court should be valid.

However, the pride of the place is taken by Section 1 of the Hindu Marriage Act, 1955 which reads thus:

Short title and extent—(1) This Act may be called the Hindu Marriage Act, 1955.

      (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

It is for this reason that Hindus married as per Hindu Rights in India, although settled abroad, are primarily required by law to process divorce proceedings only as per the said Act i.e. applying the Hindu Marriage Act, 1955.

The other emphasis of the Indian law is the mandate of Section 13 of the Hindu Marriage Act, 1955. The said Section mentions that divorce can be taken exclusively on the stated grounds. When the grounds have been specifically elucidated, it excludes the scope of granting divorce on any other ground. Few grounds mentioned in the said Act are as follows:

(i) petitioner has been treated with cruelty;

(ii) petitioner has been deserted;

(iii) respondent has ceased to be a Hindu; and

(iv) respondent has been of an incurable unsound mind.

To complete the narration of codified law on the subject, reference to Section 13 of the Code of Civil Procedure, 1908 is essential which reads as under:

When foreign judgment not conclusive —A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

            (a) where it has not been pronounced by a court of competent jurisdiction;

             (b) where it has not been given on the merits of the case;

            (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

             (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

             (e) where it has been obtained by fraud; and

             (f) where it sustains a claim founded on a breach of any law in force in India.

The above provisions were considered in detail by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi[1]. This Court ruled that:

(a) Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.

(b) It was held that the decision must be given on the “merits” of the case i.e.:

           (i) The ground of divorce in the decision of the foreign court should be a ground available under the Hindu Marriage Act, 1955. For instance, if the ground of the foreign decree was cruelty on the applicant, this would be acceptable, as “cruelty” is a stated ground under the Hindu Marriage Act, 1955. But the same cannot be said for “irretrievable breakdown of marriage”, as this is not a ground under the Hindu Marriage Act, 1955.

          (ii) The decision should be a result of contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.

(c) Refusal to recognise the law of India, is covered by saying that the ground for divorce in the foreign decree is a ground available under the Hindu Marriage Act, 1955.

(d) The foreign judgment was obtained as opposed to natural justice. The concept of natural justice is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play. This is a larger concept but shortly can be stated as essential trappings in order to have a fair adjudication. Where for instance respondent was denied documents filed by the other side or where the respondent was denied the opportunity to cross-examine witnesses of the other side, without a justifiable cause, these would be opposed to the principles of natural justice.

(e) Where the foreign decree was obtained by fraud. Fraud at any stage vitiates legal proceedings. It is often said that law and fraud cannot co-exist.

In Satya v. Teja Singh[2], when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.

Law on this has hardly undergone any development in the last 27 years. Y. Narasimha Rao case[3] stands alone, so to say.

Briefly, the expression “where it has not been given on merits of the case” was commented upon by the Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd.[4] The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that:

A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.

Situation before the Indian Courts

In the above background, Indian courts were confronted with situations wherein Hindu couples married in India as per Hindu Law, settled in a foreign land, develop matrimonial disputes and approach a foreign court. This situation demanded the Indian courts to determine whether the decrees passed by the foreign court as a consequence of the matrimonial disputes between the Hindu couples settled abroad, had any efficacy in India.

 Concept of “Comity of Courts”

This is a view taken by the courts, which is known as the concept of “comity of courts”. This means that courts in various countries grant probity to decrees of foreign courts. The understanding being, the courts all over the world adjudicate the rights of the parties and therefore, show mutual respect. This principle was first laid by the Court of England and subsequently approved by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw[5]. The Court recorded the observation that:

                9. … it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.

The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.

The Supreme Court of India in another case Alcon Electronics (P) Ltd. v. Celem SA of FOS 34320 Roujan[6], recorded the following:

                19. The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC.…

These are the competing considerations before the Indian courts. That is the codified laws and the concept of “comity of courts”. These have to be reconciled by the Indian courts.

In a different context, namely, custody of child, in an inter-country dispute, Supreme Court of India had occasioned to opine in Ruchi Majoo v. Sanjeev Majoo[7]. It may be clarified that custody of child matter is to be viewed completely differently as against dissolution of marriage. This is for the reason that in custody of child matters, welfare of the child is of paramount consideration by the Court.

Supreme Court of India took the view that:

Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 CPC. … Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement.

In that context, Supreme Court of India in Prateek Gupta v. Shilpi Gupta[8], balanced the foreign court order on custody by holding that it is one of the relevant factors without getting fixated therewith. Court held that:

           32. … while examining the question on merits, would bear in mind the welfare of the child as of paramount and predominant importance while noting the pre-existing order of the foreign court, if any, as only one of the factors and not get fixated therewith.…

A different situation arose before the Delhi High Court in Harmeeta Singh v. Rajat Taneja[9]. Here the husband had filed proceedings in the foreign court. Wife has approached the Delhi High Court by way of a civil suit. High Court restrained the husband for continuing with the proceedings in the foreign court, as the wife had no spouse visa, she possibly could not defend the proceeding in the foreign court. Of course, there was no occasion for the wife to submit to jurisdiction of the foreign court.

Broadly Two Categories of Cases

Broadly speaking two categories of cases can be carved out on the basis whether the opposite party in the foreign court appeared and actively participated or not. Therefore, the subject can be easily stated under the following two heads:

(i) Did Not Attend Nor Actively Participated

The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as, the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.

As the non-applicant did not submit to the jurisdiction, it is further said that this non-applicant did not chance a judgment in his/her favour. Challenge to the foreign court decree in such a situation may be entertained by the Indian courts. It cannot, therefore, be said that having participated, having submitted to the jurisdiction and having made submissions before the foreign court, now because the verdict of the foreign court is against the non-applicant, he is now challenging the same in the Indian court.

The non-applicant must be served with notice of the foreign court proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is a situation, Indian courts are likely to declare the entire foreign court proceedings as void.

(ii) Did Attend And Actively Participated

This question automatically answers itself, when contrasted with the above answer. Having attended and having participated, the non-applicant (respondent) in the foreign court cannot complain that he/she was not heard, if the respondent had voluntarily submitted to the jurisdiction of the foreign court. The respondent is free to make an alternative plea under the jurisdiction of the foreign court for grant of alimony or monthly maintenance. To adjudicate the same, the foreign court would be free to follow laws laid by its own land.

Another form of “attend and actively participate” is when the non-applicant consents to the passing of the decree of divorce.

Consequences of a Foreign Decree of Divorce Being Held as Invalid

Respondent cannot sit with the comfort that he/she has a decree for divorce from a foreign court. Consequences may appear soon thereafter or maybe years later. The other side may apply for its cancellation in the Indian court. In such an eventuality if:

       (i) The respondent remarries, he may be prosecuted for bigamy. Case in point is Y. Narasimha Rao v. Y. Venkata Lakshmi[10].

       (ii) Opposite party may file for maintenance.

       (iii) Issue of custody of children can be raised.

       (iv) Opposite party may claim share in the property of the respondent.

Executability of Foreign Court Decree

There is a provision in Indian law for execution of foreign court decrees. This is contained in Section 44-A CPC read with Section 13 CPC.

Although Section 44-A CPC is couched in general phraseology and would seem to apply to the execution of foreign decrees in general. However, when it comes to specific laws i.e. the Hindu Marriage Act, 1955 or the issue of custody of the child, Section 44-A seems to have little application.

These specific Acts have an overbearing effect on Section 44-A CPC. This is clear from sub-section (3) of Section 44-A which makes it clear that this is subject to the decree falling in any of the exceptions contained in Section 13 CPC.

Conclusion

The above discussion only shows how complicated the position is regarding the validity of a foreign court decree of divorce. It can perhaps be stated that a Hindu couple married in India would be well advised to seek a divorce from an Indian court only.

There can be little comfort from the fact that the foreign court decree was passed and some time has elapsed or that there is inaction of the opposite side. Consequences may appear several years later.

A Probable Way Ahead

The process of simplification could begin for instance from a Hindu couple permanently settled abroad. If facts show that they were indeed permanently settled in the foreign land, then, such a couple could be said to have causal and most immediate territorial connection with the foreign land. It could be held that their court of competent jurisdiction could be foreign court and their proper law i.e. codified law would be the foreign law. This is stated on the strength of principles given by the Supreme Court of India in Surinder Kaur Sandhu v. Harbax Singh Sandhu[11]:

                     10. … The modern theory of conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case.… Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage.…

By adopting this approach a practical way may appear for couples settled abroad. They may not need to have recourse to Indian courts. The development of law could march in this direction.

——————————————————–

† Advocate, Supreme Court of India

[1]  (1991) 3 SCC 451

[2] (1975) 1 SCC 120

[3] (1991) 3 SCC 451

[4] (2001) 5 SCC 265

[5] (1987) 1 SCC 42, 47

[6] (2017) 2 SCC 253, 262

[7] (2011) 6 SCC 479

[8] (2018) 2 SCC 309, 330

[9] 2003 SCC OnLine Del 60 : (2003) 2 RCR (Civ) 197

[10] (1991) 3 SCC 451

Tweet

The post Decree of Divorce Granted by a Foreign Court and its Maintainability in India: A Critical Analysis appeared first on SCC Blog.

Decree of Divorce Granted by a Foreign Court and its Maintainability in India: A Critical Analysis published first on https://sanantoniolegal.tumblr.com/

[legalseat]

The Vodafone Anti-Suit Injunction – A Cautionary Note

[Siddharth S. Aatreya is a V Year B.A., LL.B. (Hons.) Candidate, National Law School of India University, Bangalore]

In May 2018, the Delhi High Court issued its judgment in Union of India v Vodafone Group plc. The judgment vacated an interim order that had been passed in August 2017, by which the Court had temporarily restrained Vodafone from commencing arbitration proceedings under the India-UK BIT, owing to similar ongoing proceedings under the India-Netherlands BIT. In the first ever dispute connected to an investment arbitral proceeding before an Indian court, the Court decided to respect the kompetenz-kompetenz principle and leave the admissibility of Vodafone’s claim under the India-UK BIT to the Tribunal constituted under it. In this context, this post looks to understand the implications of the general relationship between investment arbitral tribunals and domestic Indian courts that has been fashioned in this case.

Background

The dispute arose out of a retrospective amendment to India’s Income Tax Act that fastened liability of $1.7 billion on Vodafone as capital gains tax for an offshore transaction. In 2012, Vodafone International Holdings B.V., a Dutch holding company, commenced arbitration proceedings challenging this tax demand under the India-Netherlands BIT. In 2014, a notice of dispute was served to India under the India-UK BIT by Vodafone Group plc, an English subsidiary of the Dutch holding company, on the same grounds as before. India refused to participate in the subsequent proceedings and argued that the ICJ should refuse to appoint an arbitrator on its behalf (as was required under the BIT) owing to the similarity of both proceedings. When this was unsuccessful, it approached the Delhi High Court seeking an anti-suit injunction. In its judgment, the Court held that, in general, it had the power to pass an anti-suit injunction to prevent the commencement of an investment arbitration proceeding. In this particular instance, however, it chose to leave the decision of whether to either admit Vodafone’s subsequent claim or merge the two proceedings to the Tribunal already constituted under the India-UK BIT.

The Court’s Reasoning

Despite the non-interventionist outcome of its decision, the Court’s reasoning on jurisdiction has serious consequences for the relationship between Indian courts and investment arbitral tribunals. Some of these are discussed below.

First, the Court extends the coverage of India’s domestic Code of Civil Procedure (CPC) to the arbitral proceedings on the basis of a flawed application of the territoriality principle. Its holding, in essence, was that the investment that formed the subject matter of the dispute under the BIT was located in India, meaning that Vodafone had availed of Indian Courts’ jurisdiction. It then held that Vodafone’s Dutch holding company and its English and Indian subsidiaries were a ‘single economic entity’, vesting Indian courts with jurisdiction over them.

This application of the principle ignores the fact that investment arbitral proceedings take place under international law with a separate set of agreed upon procedural and substantive rules, intended to allow investors to opt out of having to litigate in domestic courts. Thus, while Vodafone’s investment in India and the presence of its Indian subsidiary would ordinarily grant jurisdiction over all connected matters to Indian courts, proceedings under the India-UK BIT should have been held to be immune from this jurisdiction to give effect to the parties’ intention of arbitrating under the BIT. The Court here chose not to give effect to this intention and previous investment arbitral awards such as SGS v. Pakistan that highlight the need for investment arbitration proceedings to be independent of domestic courts’ jurisdiction at the procedural stage. Instead, it held that the absence of a specific provision in the India-UK BIT that excludes domestic Courts from having jurisdiction over procedural disputes under it meant that it was competent to assert jurisdiction at the procedural stage and pass an anti-suit injunction in this case.

In extending the application of the CPC to investment arbitrations, the Court does not articulate a limit on the circumstances in which it could exercise power under it. The effect, therefore, is that Indian procedural law may be applied to restrain parties’ conduct in any investment arbitration proceeding with an Indian party or dealing with Indian situated assets as its subject matter. Such a broad application of domestic procedural law to an ongoing investment arbitration is unprecedented. Indeed, the Court’s reliance on the English decision of Republic of Ecuador v. Occidental Exploration, [2005] EWCA Civ 1116, to justify this reasoning is incorrect because that judgment dealt with the jurisdiction of English courts to decide upon the enforceability of a final awardrendered under a BIT, as against jurisdiction in respect procedural issues connected to an ongoing proceeding.

Second,the Court erred in creating an imbalance in the rights accorded to parties to an investment arbitration proceeding. It observed that the treaty is distinct from a contractual agreement to arbitrate between the State and the investor. It then relied on this to hold that its power to restrain the conduct of parties to commercial arbitration proceedings at the procedural stage may be used in a similar manner only against investors in investment arbitration cases too. Not doing so, it held, would be like “lifting the status of the private investor to the pedestal of a foreign State”.  

While rendered in the context of an anti-arbitration injunction, the principle underlying the judgment is that an investor’s conduct during the procedural stages of an investment arbitration may be controlled by an Indian court. What is unclear, however, is whether similar control may be exercised over the conduct of a State (in a variety of possible instances, such as the presentation of a counter-claim against an investor, the introduction of evidence etc.) during these procedural stages. If a State’s (either Indian or foreign) conduct is, in fact, outside the scope of an Indian court’s control, it would mean that a State may approach an Indian court to restrain an investor’s actions at the procedural stage in this manner, but an investor would not have the reciprocal right to do so against a State.

This would result in a regression to an old understanding of international law, which saw only States as having rights and any independent standing in it. BITs have for long been acknowledged as instruments that disrupt that understanding, vesting direct rights in international law with private investors so as to place them on an equal footing with States for the purposes of the arbitration. In possibly creating this imbalance between an investor’s and State’s powers to approach an Indian court at the procedural stages of an investment arbitration, the judgment may unfairly skew the process in the State’s favour.

Third,despite its laborious reasoning used to extend the CPC to arbitration proceedings under BITs, the Court’s ultimate decision of choosing not to interfere in this case makes no reference to it. Instead, the Court acknowledges that an injunction in this case that is valid in domestic law may still not be valid in international law. It therefore holds that Indian courts would only retain jurisdiction to restrain international treaty arbitrations that are “oppressive, vexatious, inequitable or constitute an abuse of the legal process”, observing that it must always interfere on these grounds “with extreme hesitation”. While this language seems promising insofar as it appears to set the bar for interference very high, the Court never analyses how the facts of the present case do not fall within its scope. From a precedent-setting perspective for subsequent decisions by Indian courts, therefore, the judgment does not provide any guidance on what factors are to be considered in instances of anti-arbitration injunctions or other potential interventions at the procedural stage of investment arbitration proceedings.

Conclusion

Vodafoneis not the first instance of domestic courts asserting jurisdiction over investment arbitration disputes before the rendering of a final award. In fact, in GPF GP S.a.r.l. v. Republic of Poland rendered on 2 March 2018, the England and Wales High Court set aside an investor-state arbitral award on jurisdiction, precluding a hearing on merits by the tribunal. However, it did so by conducting a “rehearing” under the English Arbitration Act, 1996, as it does when deciding upon the validity of a final award at the enforcement stage too. English courts, therefore, may apply the Arbitration Act to determine the validity of an award, whether on jurisdiction or merits, but may not use general English civil procedural law to restrain any party’s conduct in an ongoing investment arbitration proceeding.

Vodafone, therefore, stands alone in extending domestic procedural law to ongoing investment arbitrations without a clear prescription of a limit on that power. It also draws an artificial distinction between States and private investors, giving States an outlet to further restrain the actions of investors during the pendency of a case. While it appears to be an “arbitration friendly” decision at first glance, a second look reveals that it has the potential to be misused to justify an interventionist approach to investment arbitrations by Indian courts in the future.

– Siddharth S. Aatreya

The post The Vodafone Anti-Suit Injunction – A Cautionary Note appeared first on IndiaCorpLaw.

The Vodafone Anti-Suit Injunction – A Cautionary Note published first on https://divorcelawyermumbai.tumblr.com/

[firstlawindia]

How to Return or Reject Plaint under Order VI Rule 10 & 11 CPC It is a trite law that plaint could be returned at any stage of the suit to be presented to the Court in which the suit should have been instituted, if the Court finds that the Court did not have the territorial or pecuniary jurisdiction to try the suit.

[prolawctor]

Understanding the Territorial Jurisdiction of the CPC

The territorial jurisdiction of the CPC is a foundational concept in Indian civil law, defining the geographical boundaries within which a court has the authority to hear and decide cases. Understanding territorial jurisdiction under CPC is essential for law students and legal professionals, as it directly impacts where a civil suit can be filed, the venue of the trial, and the court’s authority…

[loyallogic]

Procedure for Execution of a Decree of Sale of Immovable Property

This article is written by Sarabjit Singh, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com. Here he discusses “Procedure for Execution of a Decree of Sale of Immovable Property”.

After a lot of toils, hard work, determination, emptying of pockets one qualifies from being called a ‘Plaintiff’ to a ‘Decree Holder’, and in the process on an average anything upwards from a decade to more than one decade is consumed.  During this journey, the plaintiff who started as an innocent and reluctant litigant metamorphosis’s into a half-baked lawyer.  It is akin to a nursery toddler who after years of devotion, sacrifices, and dint of hard-work finally has a post-graduate degree in hand, which in our case we shall call ‘Decree of Sale’.

However, fruits of labor shall only mature after the execution of the ‘Decree of Sale’.  The word execution, is not defined but understood to be, ‘a judicial act by which a public officer is empowered to carry judgments or orders into effect’?  In other words, it means the carrying into effect the judgment or order delivered in a court of law.  Order 21 along with 106 rules in its kitty is the most extensive of all in the Civil Procedure Code (CPC), 1908, it lays bare the procedure involved along with relevant sections, which we shall have at our command to conquer the ultimate summit. 

Introduction

Mostly, the decree of sale of immovable property is awarded for enforcing mortgage deed, charge, or for recovery of money or any other kind of encumbrances as deemed fit by the court. The person in whose favor decree is awarded is called the ‘Decree Holder’, (DH) and the one incumbent to satisfy it is ‘Judgment Debtor’ (JD). Decree of sale comes into being upon adjudication by any court exercising original jurisdiction, and the same can be applied for execution after the prescribed period of appeal, provided it is not preferred by the JD. Per contra, this can go on until the JD gives up or exhausts all his legal remedies.  

Limitation & Executing Court

Period of limitation under ‘The Limitation Act, 1963’ for filing of execution petition is 12 years from the date that the decree becomes enforceable.  The same shall be filed in the very court that exercised original jurisdiction. However, the court may transfer the same for execution to any other court directly, even if it is situated outside the State.  This could be for various reasons such as the immovable property to be sold falls under the territorial jurisdiction of that court etc. While transferring the decree for execution, the court shall send all relevant documents viz. copy of the decree, certificate setting forth that due claim remains unsatisfied or any part that remains, etc.

Written Application

DH shall move a written application in the court that originally passed the decree or the court to which it has been transferred for execution.  The application shall contain all the essential information viz. suit number, name of parties, date of the decree, any appeal preferred or pending, amount due, name of the person against whom execution is sought, and most importantly the mode in which the assistance of the court is required.  Presently, we are discussing for the purposes of attachment and sale of immovable property to the satisfaction of the decreed amount. DH should take care to quote the amount which in his estimate is the true value of the immovable property to be sold.

Click Above

Show Cause Notice

After the executing court has satisfied itself that all defects if any have been cured in the application and has provisionally evaluated without prejudice to the right of the parties the correct amount for the execution of the decree vis-à-vis value of the immovable property a show-cause notice is issued to the judgment debtor.  It is an opportunity for him to raise his claims or objections against the execution of the decree on the day and date fixed for hearing. Show cause notice is necessary only if the execution petition is filed after 2 years of passing of the decree, or is against a legal representative or assignee or receiver where DH is declared to be insolvent. However, the court may in its wisdom issue process instead of show cause notice if it foresees unreasonable delay or ends of justice are threatened. 

Application for Attachment

Once after the court has decided upon the claims or objections if any, raised by the judgment debtor, against the execution of a decree; the DH shall move an application requesting attachment of immovable property preceding sale.  Though sale can take place without attachment, this shall further help in protecting the interests of the DH. The application shall contain complete details of the immovable property so as to help in its identification. Also elaborate the extent of JD interest in the said property, as per his information and belief.  Whenever possible, the DH holder shall produce extracts from the registrar’s office showing various details such as interest of parties if more than one, revenue due to the government, encumbrance’s if any in the immovable property, etc. 

Prohibiting Alienation of Property 

After due diligence, the court shall pass an order prohibiting the JD from transferring or charging the property in any manner such as sale, gift, lease, mortgage or otherwise.  The same shall apply to all who may be interested to receive it. Such prohibitory order shall safeguard DH’s interests. The same shall be drawn in writing and posted at a conspicuous place adjacent to the immovable property in question, and also at collector’s office if the said property is land paying revenue to the government.  Besides affixing, it shall be publicly proclaimed with the beating of drums and other means. This order shall also require the presence of the JD debtor in court on date fixed for settling the terms of the proclamation for sale. 

Objections to Attachment

All claims or objections regard to the attachment of property on the ground that such property is not liable to be attached shall be filed before the executing court.  However, such applications shall not be entertained by the court if the claim or objections is preferred after the attached property has already been sold or is unnecessarily delayed by design.  In such circumstances, only remedy available to the applicant is to file a separate suit, and the court shall be bound by such outcome. However, w.r.t. all questions pertaining to right, title or interest they shall be adjudicated by the executing court itself.

Preparing Notice of Sale & its Proclamation 

The executing court is empowered to attach property, and publicly auction it to pay the person entitled proceeds of the sale in satisfaction of the decretal amount.  In this regards, the court shall issue a notice to both DH and JD to present themselves in court on the day and date fixed for drawing proclamation of sale notice. It is prepared in the language of the court and contains all the essentials viz. time and place of sale, specifications and description of property to be sold, revenue assessed if any due, any encumbrance to which the property is liable, decreed amount, estimate value of the property as ascertained by the court, judgment debtor and decree-holder or any other material information necessary that shall aid the purchaser in its evaluation. Care is taken to sell only that part of the property that is necessary to satisfy the decree. The court is also empowered to summon anyone, or demand documents deemed necessary in preparation of this proclamation notice. Henceforth, the court shall order the Nazir of the Court for causing service of this drawn proclamation of sale.   The same shall be published and announced by beat of drums. A copy of the same is affixed on a conspicuous part of the property and the courthouse. After performing all such acts, Nazir shall prepare a report for the information of the executing court.

Warrant of Sale

The court shall issue a warrant of sale order in the name of the bailiff to publicly auction as per the details mentioned in the warrant on the date and place specified and report back to court with an endorsement certifying the manner in which sale has been executed or the reason why it has not been executed. 

Adjournment, postponement or stoppage of sale

The court may at its discretion adjourn sale to a specified date and hour, and so can an officer conducting the sale but after recording reasons thereto.  And if the auction is taking place within the precincts of the courthouse then only after leave of court.

Sale can be adjourned when the bid amount is not adequate.

Sale can be adjourned if the purchaser fails to pay 25% of the bid amount immediately on closing of bid, and postponed if he does not pay the remaining sum within 15 days of the successful bid. 

Provided, if the JD is able to satisfy the court that if the given time he shall be able to raise the decreed amount either by way of leasing, mortgaging or selling the property in question or other property the court may postpone the sale on such terms and for such period as it deems fit.  The court shall grant a certificate to the JD in this respect. All monies raised by JD shall be paid to the DH. 

If for any reason purchaser defaults on paying the full bid amount then after defraying the expenses involved in the auction, the remainder sum may be forfeited in the favor of the government, if the court so decides.  And the property shall be resold after issuing a fresh proclamation.  

The sale could be stopped any time before the lot is knocked down if the JD tenders to the officer conducting the sale the full decreed amount along with costs and expenses or on producing proof of its deposit in executing court.

Sale can stay pending adjudication of any claim or objection even if it is received after proclamation of attachment and advertisement for sale.  Or conditionally allowed pending adjudication that if property is sold the same shall not be confirmed or pass orders subject to such terms and conditions as to security etc. 

Note: If adjournment exceeds 30 days then fresh proclamation is to be issued, published and affixed as mentioned earlier.

Application to set aside the sale

Any person claiming an interest in the property sold may apply to the court to set it aside subject to payment in court 5% of purchase money and sum equal to that specified in proclamation notice i.e. decreed amount. 

DH, purchaser or any other person having interest in the distribution of proceeds from the sale may apply for setting aside the sale on grounds of fraud or material irregularity in publishing or conducting the auction, provided injury sustained is substantial.  No such application shall be accepted if the applicant had an opportunity to approach the court on an earlier occasion but has failed to do so. 

Purchaser may apply to set aside the sale on the ground that the JD has no saleable interest in the decreed property. 

Pertaining to all of the above cases, notice is issued to the other party to show cause before adjudication.

Successful Sale 

If a sale is successful, then the purchaser is required to immediately deposit 25% of the sale amount and the rest within 15 days of successful bid unless DH is the purchaser himself with the prior permission of the court.

Distribution of money realized from sale

After defraying expenses involved in the sale of property, pay to decree-holder his full entitlement, and if any balance remains that shall be given to the JD.  If on the contrary money realized from sale is not sufficient to satisfy the decreed amount then the DH can apply to the court for recovery of balance amount provided it is legally recoverable. 

Certificate to purchaser

Once the sale has become absolute, and there is no litigation pending in either of the courts i.e. executing court or courts of appeal the court shall issue a certificate in favor of the purchaser containing the details of the property and the day and date he is declared to be the absolute owner of the immovable property.  If the property in question is occupied by a tenant the court shall issue a proclamation bringing to his notice the name of the new owner. 

Finally, if for any reason the purchaser is being obstructed from gaining possession the court shall intervene on the application, and order the bailiff to put the purchaser in possession of the sold property.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Procedure for Execution of a Decree of Sale of Immovable Property appeared first on iPleaders.

Procedure for Execution of a Decree of Sale of Immovable Property published first on https://namechangers.tumblr.com/

[loyallogic]

Procedure for Execution of a Decree of Sale of Immovable Property

This article is written by Sarabjit Singh, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com. Here he discusses “Procedure for Execution of a Decree of Sale of Immovable Property”.

After a lot of toils, hard work, determination, emptying of pockets one qualifies from being called a ‘Plaintiff’ to a ‘Decree Holder’, and in the process on an average anything upwards from a decade to more than one decade is consumed.  During this journey, the plaintiff who started as an innocent and reluctant litigant metamorphosis’s into a half-baked lawyer.  It is akin to a nursery toddler who after years of devotion, sacrifices, and dint of hard-work finally has a post-graduate degree in hand, which in our case we shall call ‘Decree of Sale’.

However, fruits of labor shall only mature after the execution of the ‘Decree of Sale’.  The word execution, is not defined but understood to be, ‘a judicial act by which a public officer is empowered to carry judgments or orders into effect’?  In other words, it means the carrying into effect the judgment or order delivered in a court of law.  Order 21 along with 106 rules in its kitty is the most extensive of all in the Civil Procedure Code (CPC), 1908, it lays bare the procedure involved along with relevant sections, which we shall have at our command to conquer the ultimate summit. 

Introduction

Mostly, the decree of sale of immovable property is awarded for enforcing mortgage deed, charge, or for recovery of money or any other kind of encumbrances as deemed fit by the court. The person in whose favor decree is awarded is called the ‘Decree Holder’, (DH) and the one incumbent to satisfy it is ‘Judgment Debtor’ (JD). Decree of sale comes into being upon adjudication by any court exercising original jurisdiction, and the same can be applied for execution after the prescribed period of appeal, provided it is not preferred by the JD. Per contra, this can go on until the JD gives up or exhausts all his legal remedies.  

Limitation & Executing Court

Period of limitation under ‘The Limitation Act, 1963’ for filing of execution petition is 12 years from the date that the decree becomes enforceable.  The same shall be filed in the very court that exercised original jurisdiction. However, the court may transfer the same for execution to any other court directly, even if it is situated outside the State.  This could be for various reasons such as the immovable property to be sold falls under the territorial jurisdiction of that court etc. While transferring the decree for execution, the court shall send all relevant documents viz. copy of the decree, certificate setting forth that due claim remains unsatisfied or any part that remains, etc.

Written Application

DH shall move a written application in the court that originally passed the decree or the court to which it has been transferred for execution.  The application shall contain all the essential information viz. suit number, name of parties, date of the decree, any appeal preferred or pending, amount due, name of the person against whom execution is sought, and most importantly the mode in which the assistance of the court is required.  Presently, we are discussing for the purposes of attachment and sale of immovable property to the satisfaction of the decreed amount. DH should take care to quote the amount which in his estimate is the true value of the immovable property to be sold.

Click Above

Show Cause Notice

After the executing court has satisfied itself that all defects if any have been cured in the application and has provisionally evaluated without prejudice to the right of the parties the correct amount for the execution of the decree vis-à-vis value of the immovable property a show-cause notice is issued to the judgment debtor.  It is an opportunity for him to raise his claims or objections against the execution of the decree on the day and date fixed for hearing. Show cause notice is necessary only if the execution petition is filed after 2 years of passing of the decree, or is against a legal representative or assignee or receiver where DH is declared to be insolvent. However, the court may in its wisdom issue process instead of show cause notice if it foresees unreasonable delay or ends of justice are threatened. 

Application for Attachment

Once after the court has decided upon the claims or objections if any, raised by the judgment debtor, against the execution of a decree; the DH shall move an application requesting attachment of immovable property preceding sale.  Though sale can take place without attachment, this shall further help in protecting the interests of the DH. The application shall contain complete details of the immovable property so as to help in its identification. Also elaborate the extent of JD interest in the said property, as per his information and belief.  Whenever possible, the DH holder shall produce extracts from the registrar’s office showing various details such as interest of parties if more than one, revenue due to the government, encumbrance’s if any in the immovable property, etc. 

Prohibiting Alienation of Property 

After due diligence, the court shall pass an order prohibiting the JD from transferring or charging the property in any manner such as sale, gift, lease, mortgage or otherwise.  The same shall apply to all who may be interested to receive it. Such prohibitory order shall safeguard DH’s interests. The same shall be drawn in writing and posted at a conspicuous place adjacent to the immovable property in question, and also at collector’s office if the said property is land paying revenue to the government.  Besides affixing, it shall be publicly proclaimed with the beating of drums and other means. This order shall also require the presence of the JD debtor in court on date fixed for settling the terms of the proclamation for sale. 

Objections to Attachment

All claims or objections regard to the attachment of property on the ground that such property is not liable to be attached shall be filed before the executing court.  However, such applications shall not be entertained by the court if the claim or objections is preferred after the attached property has already been sold or is unnecessarily delayed by design.  In such circumstances, only remedy available to the applicant is to file a separate suit, and the court shall be bound by such outcome. However, w.r.t. all questions pertaining to right, title or interest they shall be adjudicated by the executing court itself.

Preparing Notice of Sale & its Proclamation 

The executing court is empowered to attach property, and publicly auction it to pay the person entitled proceeds of the sale in satisfaction of the decretal amount.  In this regards, the court shall issue a notice to both DH and JD to present themselves in court on the day and date fixed for drawing proclamation of sale notice. It is prepared in the language of the court and contains all the essentials viz. time and place of sale, specifications and description of property to be sold, revenue assessed if any due, any encumbrance to which the property is liable, decreed amount, estimate value of the property as ascertained by the court, judgment debtor and decree-holder or any other material information necessary that shall aid the purchaser in its evaluation. Care is taken to sell only that part of the property that is necessary to satisfy the decree. The court is also empowered to summon anyone, or demand documents deemed necessary in preparation of this proclamation notice. Henceforth, the court shall order the Nazir of the Court for causing service of this drawn proclamation of sale.   The same shall be published and announced by beat of drums. A copy of the same is affixed on a conspicuous part of the property and the courthouse. After performing all such acts, Nazir shall prepare a report for the information of the executing court.

Warrant of Sale

The court shall issue a warrant of sale order in the name of the bailiff to publicly auction as per the details mentioned in the warrant on the date and place specified and report back to court with an endorsement certifying the manner in which sale has been executed or the reason why it has not been executed. 

Adjournment, postponement or stoppage of sale

The court may at its discretion adjourn sale to a specified date and hour, and so can an officer conducting the sale but after recording reasons thereto.  And if the auction is taking place within the precincts of the courthouse then only after leave of court.

Sale can be adjourned when the bid amount is not adequate.

Sale can be adjourned if the purchaser fails to pay 25% of the bid amount immediately on closing of bid, and postponed if he does not pay the remaining sum within 15 days of the successful bid. 

Provided, if the JD is able to satisfy the court that if the given time he shall be able to raise the decreed amount either by way of leasing, mortgaging or selling the property in question or other property the court may postpone the sale on such terms and for such period as it deems fit.  The court shall grant a certificate to the JD in this respect. All monies raised by JD shall be paid to the DH. 

If for any reason purchaser defaults on paying the full bid amount then after defraying the expenses involved in the auction, the remainder sum may be forfeited in the favor of the government, if the court so decides.  And the property shall be resold after issuing a fresh proclamation.  

The sale could be stopped any time before the lot is knocked down if the JD tenders to the officer conducting the sale the full decreed amount along with costs and expenses or on producing proof of its deposit in executing court.

Sale can stay pending adjudication of any claim or objection even if it is received after proclamation of attachment and advertisement for sale.  Or conditionally allowed pending adjudication that if property is sold the same shall not be confirmed or pass orders subject to such terms and conditions as to security etc. 

Note: If adjournment exceeds 30 days then fresh proclamation is to be issued, published and affixed as mentioned earlier.

Application to set aside the sale

Any person claiming an interest in the property sold may apply to the court to set it aside subject to payment in court 5% of purchase money and sum equal to that specified in proclamation notice i.e. decreed amount. 

DH, purchaser or any other person having interest in the distribution of proceeds from the sale may apply for setting aside the sale on grounds of fraud or material irregularity in publishing or conducting the auction, provided injury sustained is substantial.  No such application shall be accepted if the applicant had an opportunity to approach the court on an earlier occasion but has failed to do so. 

Purchaser may apply to set aside the sale on the ground that the JD has no saleable interest in the decreed property. 

Pertaining to all of the above cases, notice is issued to the other party to show cause before adjudication.

Successful Sale 

If a sale is successful, then the purchaser is required to immediately deposit 25% of the sale amount and the rest within 15 days of successful bid unless DH is the purchaser himself with the prior permission of the court.

Distribution of money realized from sale

After defraying expenses involved in the sale of property, pay to decree-holder his full entitlement, and if any balance remains that shall be given to the JD.  If on the contrary money realized from sale is not sufficient to satisfy the decreed amount then the DH can apply to the court for recovery of balance amount provided it is legally recoverable. 

Certificate to purchaser

Once the sale has become absolute, and there is no litigation pending in either of the courts i.e. executing court or courts of appeal the court shall issue a certificate in favor of the purchaser containing the details of the property and the day and date he is declared to be the absolute owner of the immovable property.  If the property in question is occupied by a tenant the court shall issue a proclamation bringing to his notice the name of the new owner. 

Finally, if for any reason the purchaser is being obstructed from gaining possession the court shall intervene on the application, and order the bailiff to put the purchaser in possession of the sold property.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

The post Procedure for Execution of a Decree of Sale of Immovable Property appeared first on iPleaders.

Procedure for Execution of a Decree of Sale of Immovable Property published first on https://namechangers.tumblr.com/

[postolo]

Del HC | Wife can maintain S. 125 CrPC application even at a place where she is residing for time-being

Delhi High Court: The Bench of Sanjeev Sachdeva, J. dismissed a revision petition filed by the husband against the judgment of the trial court whereby his application under Order 7 Rule 11 CPC impugning the proceedings filed by the wife on the ground of territorial jurisdiction was rejected.

Sanjay S. Chhabra with Satish Chaudhary, Advocates for the petitioner argued that the present application by the wife under Section 125 CrPC was not maintainable at Delhi because in all proceedings except the present one she had mentioned her residential address at Aligarh, U.P. Per contra, it was submitted on behalf of the wife by Saurabh Soni with Mannat Singh, Advocates that she was residing in Delhi with her brother since 2008.

The High Court perused Section 126(1) CrPC which deals with the place of the institution of proceedings under Section 125. It was observed, “Section 126(1) does not contemplate permanent place of residence. Even a place where the wife is for the time being residing would confer jurisdiction on such a court, where she is residing. However, residence temporarily acquired solely for conferring jurisdiction would not satisfy the requirements of Section 126(1).”In view of the law that wife can maintain a petition under Section 125 at any place where she is residing and the fact that she placed on record proof that reflected her address at Delhi, it was held that the trial court did not commit any error in rejecting husband’s application. The petition was dismissed for being without merit.[Sachin Gupta v. Rachna Gupta, Crl. Revision Petition No. 476 of 2018, dated 21-01-2019]

Tweet

The post Del HC | Wife can maintain S. 125 CrPC application even at a place where she is residing for time-being appeared first on SCC Blog.

Del HC | Wife can maintain S. 125 CrPC application even at a place where she is residing for time-being published first on https://sanantoniolegal.tumblr.com/

[postolo]

Place of residence of mother to be considered while instituting a petition for guardianship of a minor child below 5 years of age

Punjab & Haryana High Court: A Single Judge Bench of Amol Rattan Singh, J., dismissed a petition filed against the order of the lower court whereby the application of the petitioner under Order VII, Rule 11 of CPC was dismissed.

The main issue that arose before the Court was whether the lower court had the territorial jurisdiction to hear the petition under Section 25 of the Guardian and Wards Act, 1990 read with Section 10 of the Hindu Minority and Guardianship Act, 1956 and Section 26 of the Hindu Marriage Act, 1955.

The Court observed that the application in respect of the guardianship of the minor is to be made to the District Court having jurisdiction in the place where minor ordinarily resides. The Court referred to the case of Sunita Jain v. Mittar Sain Jain,2002 SCC OnLine P&H 869, wherein it was held that the place of residence of a minor child below 5 years of age would be the place of residence of the mother. The custody of a child below 5 years of age (especially a female child), would naturally lie with the mother, and therefore the deemed custody would be with the mother even if actual custody was with the father.

The Court held that in the instant case the age of the child was 11 months and hence applying the rule laid down in Sunita Jain’s case, the natural custody of such child would lie with the mother. Hence, the petition for the guardianship of the child was rightly instituted before the District Court of Khadur Sahib. Resultantly, the petition of the petitioner was dismissed and the order of lower court was upheld. [Tejbir Singh v. Baljit Kaur, CR No. 7257 of 2018, order dated 02-11-2018]

Tweet

The post Place of residence of mother to be considered while instituting a petition for guardianship of a minor child below 5 years of age appeared first on SCC Blog.

Place of residence of mother to be considered while instituting a petition for guardianship of a minor child below 5 years of age published first on https://sanantoniolegal.tumblr.com/

[legalseat]

The Vodafone Anti-Suit Injunction – A Cautionary Note

[Siddharth S. Aatreya is a V Year B.A., LL.B. (Hons.) Candidate, National Law School of India University, Bangalore]

In May 2018, the Delhi High Court issued its judgment in Union of India v Vodafone Group plc. The judgment vacated an interim order that had been passed in August 2017, by which the Court had temporarily restrained Vodafone from commencing arbitration proceedings under the India-UK BIT, owing to similar ongoing proceedings under the India-Netherlands BIT. In the first ever dispute connected to an investment arbitral proceeding before an Indian court, the Court decided to respect the kompetenz-kompetenz principle and leave the admissibility of Vodafone’s claim under the India-UK BIT to the Tribunal constituted under it. In this context, this post looks to understand the implications of the general relationship between investment arbitral tribunals and domestic Indian courts that has been fashioned in this case.

Background

The dispute arose out of a retrospective amendment to India’s Income Tax Act that fastened liability of $1.7 billion on Vodafone as capital gains tax for an offshore transaction. In 2012, Vodafone International Holdings B.V., a Dutch holding company, commenced arbitration proceedings challenging this tax demand under the India-Netherlands BIT. In 2014, a notice of dispute was served to India under the India-UK BIT by Vodafone Group plc, an English subsidiary of the Dutch holding company, on the same grounds as before. India refused to participate in the subsequent proceedings and argued that the ICJ should refuse to appoint an arbitrator on its behalf (as was required under the BIT) owing to the similarity of both proceedings. When this was unsuccessful, it approached the Delhi High Court seeking an anti-suit injunction. In its judgment, the Court held that, in general, it had the power to pass an anti-suit injunction to prevent the commencement of an investment arbitration proceeding. In this particular instance, however, it chose to leave the decision of whether to either admit Vodafone’s subsequent claim or merge the two proceedings to the Tribunal already constituted under the India-UK BIT.

The Court’s Reasoning

Despite the non-interventionist outcome of its decision, the Court’s reasoning on jurisdiction has serious consequences for the relationship between Indian courts and investment arbitral tribunals. Some of these are discussed below.

First, the Court extends the coverage of India’s domestic Code of Civil Procedure (CPC) to the arbitral proceedings on the basis of a flawed application of the territoriality principle. Its holding, in essence, was that the investment that formed the subject matter of the dispute under the BIT was located in India, meaning that Vodafone had availed of Indian Courts’ jurisdiction. It then held that Vodafone’s Dutch holding company and its English and Indian subsidiaries were a ‘single economic entity’, vesting Indian courts with jurisdiction over them.

This application of the principle ignores the fact that investment arbitral proceedings take place under international law with a separate set of agreed upon procedural and substantive rules, intended to allow investors to opt out of having to litigate in domestic courts. Thus, while Vodafone’s investment in India and the presence of its Indian subsidiary would ordinarily grant jurisdiction over all connected matters to Indian courts, proceedings under the India-UK BIT should have been held to be immune from this jurisdiction to give effect to the parties’ intention of arbitrating under the BIT. The Court here chose not to give effect to this intention and previous investment arbitral awards such as SGS v. Pakistan that highlight the need for investment arbitration proceedings to be independent of domestic courts’ jurisdiction at the procedural stage. Instead, it held that the absence of a specific provision in the India-UK BIT that excludes domestic Courts from having jurisdiction over procedural disputes under it meant that it was competent to assert jurisdiction at the procedural stage and pass an anti-suit injunction in this case.

In extending the application of the CPC to investment arbitrations, the Court does not articulate a limit on the circumstances in which it could exercise power under it. The effect, therefore, is that Indian procedural law may be applied to restrain parties’ conduct in any investment arbitration proceeding with an Indian party or dealing with Indian situated assets as its subject matter. Such a broad application of domestic procedural law to an ongoing investment arbitration is unprecedented. Indeed, the Court’s reliance on the English decision of Republic of Ecuador v. Occidental Exploration, [2005] EWCA Civ 1116, to justify this reasoning is incorrect because that judgment dealt with the jurisdiction of English courts to decide upon the enforceability of a final awardrendered under a BIT, as against jurisdiction in respect procedural issues connected to an ongoing proceeding.

Second,the Court erred in creating an imbalance in the rights accorded to parties to an investment arbitration proceeding. It observed that the treaty is distinct from a contractual agreement to arbitrate between the State and the investor. It then relied on this to hold that its power to restrain the conduct of parties to commercial arbitration proceedings at the procedural stage may be used in a similar manner only against investors in investment arbitration cases too. Not doing so, it held, would be like “lifting the status of the private investor to the pedestal of a foreign State”.  

While rendered in the context of an anti-arbitration injunction, the principle underlying the judgment is that an investor’s conduct during the procedural stages of an investment arbitration may be controlled by an Indian court. What is unclear, however, is whether similar control may be exercised over the conduct of a State (in a variety of possible instances, such as the presentation of a counter-claim against an investor, the introduction of evidence etc.) during these procedural stages. If a State’s (either Indian or foreign) conduct is, in fact, outside the scope of an Indian court’s control, it would mean that a State may approach an Indian court to restrain an investor’s actions at the procedural stage in this manner, but an investor would not have the reciprocal right to do so against a State.

This would result in a regression to an old understanding of international law, which saw only States as having rights and any independent standing in it. BITs have for long been acknowledged as instruments that disrupt that understanding, vesting direct rights in international law with private investors so as to place them on an equal footing with States for the purposes of the arbitration. In possibly creating this imbalance between an investor’s and State’s powers to approach an Indian court at the procedural stages of an investment arbitration, the judgment may unfairly skew the process in the State’s favour.

Third,despite its laborious reasoning used to extend the CPC to arbitration proceedings under BITs, the Court’s ultimate decision of choosing not to interfere in this case makes no reference to it. Instead, the Court acknowledges that an injunction in this case that is valid in domestic law may still not be valid in international law. It therefore holds that Indian courts would only retain jurisdiction to restrain international treaty arbitrations that are “oppressive, vexatious, inequitable or constitute an abuse of the legal process”, observing that it must always interfere on these grounds “with extreme hesitation”. While this language seems promising insofar as it appears to set the bar for interference very high, the Court never analyses how the facts of the present case do not fall within its scope. From a precedent-setting perspective for subsequent decisions by Indian courts, therefore, the judgment does not provide any guidance on what factors are to be considered in instances of anti-arbitration injunctions or other potential interventions at the procedural stage of investment arbitration proceedings.

Conclusion

Vodafoneis not the first instance of domestic courts asserting jurisdiction over investment arbitration disputes before the rendering of a final award. In fact, in GPF GP S.a.r.l. v. Republic of Poland rendered on 2 March 2018, the England and Wales High Court set aside an investor-state arbitral award on jurisdiction, precluding a hearing on merits by the tribunal. However, it did so by conducting a “rehearing” under the English Arbitration Act, 1996, as it does when deciding upon the validity of a final award at the enforcement stage too. English courts, therefore, may apply the Arbitration Act to determine the validity of an award, whether on jurisdiction or merits, but may not use general English civil procedural law to restrain any party’s conduct in an ongoing investment arbitration proceeding.

Vodafone, therefore, stands alone in extending domestic procedural law to ongoing investment arbitrations without a clear prescription of a limit on that power. It also draws an artificial distinction between States and private investors, giving States an outlet to further restrain the actions of investors during the pendency of a case. While it appears to be an “arbitration friendly” decision at first glance, a second look reveals that it has the potential to be misused to justify an interventionist approach to investment arbitrations by Indian courts in the future.

– Siddharth S. Aatreya

The post The Vodafone Anti-Suit Injunction – A Cautionary Note appeared first on IndiaCorpLaw.

The Vodafone Anti-Suit Injunction – A Cautionary Note published first on https://divorcelawyermumbai.tumblr.com/

[legalseat]

The Vodafone Anti-Suit Injunction – A Cautionary Note

[Siddharth S. Aatreya is a V Year B.A., LL.B. (Hons.) Candidate, National Law School of India University, Bangalore]

In May 2018, the Delhi High Court issued its judgment in Union of India v Vodafone Group plc. The judgment vacated an interim order that had been passed in August 2017, by which the Court had temporarily restrained Vodafone from commencing arbitration proceedings under the India-UK BIT, owing to similar ongoing proceedings under the India-Netherlands BIT. In the first ever dispute connected to an investment arbitral proceeding before an Indian court, the Court decided to respect the kompetenz-kompetenz principle and leave the admissibility of Vodafone’s claim under the India-UK BIT to the Tribunal constituted under it. In this context, this post looks to understand the implications of the general relationship between investment arbitral tribunals and domestic Indian courts that has been fashioned in this case.

Background

The dispute arose out of a retrospective amendment to India’s Income Tax Act that fastened liability of $1.7 billion on Vodafone as capital gains tax for an offshore transaction. In 2012, Vodafone International Holdings B.V., a Dutch holding company, commenced arbitration proceedings challenging this tax demand under the India-Netherlands BIT. In 2014, a notice of dispute was served to India under the India-UK BIT by Vodafone Group plc, an English subsidiary of the Dutch holding company, on the same grounds as before. India refused to participate in the subsequent proceedings and argued that the ICJ should refuse to appoint an arbitrator on its behalf (as was required under the BIT) owing to the similarity of both proceedings. When this was unsuccessful, it approached the Delhi High Court seeking an anti-suit injunction. In its judgment, the Court held that, in general, it had the power to pass an anti-suit injunction to prevent the commencement of an investment arbitration proceeding. In this particular instance, however, it chose to leave the decision of whether to either admit Vodafone’s subsequent claim or merge the two proceedings to the Tribunal already constituted under the India-UK BIT.

The Court’s Reasoning

Despite the non-interventionist outcome of its decision, the Court’s reasoning on jurisdiction has serious consequences for the relationship between Indian courts and investment arbitral tribunals. Some of these are discussed below.

First, the Court extends the coverage of India’s domestic Code of Civil Procedure (CPC) to the arbitral proceedings on the basis of a flawed application of the territoriality principle. Its holding, in essence, was that the investment that formed the subject matter of the dispute under the BIT was located in India, meaning that Vodafone had availed of Indian Courts’ jurisdiction. It then held that Vodafone’s Dutch holding company and its English and Indian subsidiaries were a ‘single economic entity’, vesting Indian courts with jurisdiction over them.

This application of the principle ignores the fact that investment arbitral proceedings take place under international law with a separate set of agreed upon procedural and substantive rules, intended to allow investors to opt out of having to litigate in domestic courts. Thus, while Vodafone’s investment in India and the presence of its Indian subsidiary would ordinarily grant jurisdiction over all connected matters to Indian courts, proceedings under the India-UK BIT should have been held to be immune from this jurisdiction to give effect to the parties’ intention of arbitrating under the BIT. The Court here chose not to give effect to this intention and previous investment arbitral awards such as SGS v. Pakistan that highlight the need for investment arbitration proceedings to be independent of domestic courts’ jurisdiction at the procedural stage. Instead, it held that the absence of a specific provision in the India-UK BIT that excludes domestic Courts from having jurisdiction over procedural disputes under it meant that it was competent to assert jurisdiction at the procedural stage and pass an anti-suit injunction in this case.

In extending the application of the CPC to investment arbitrations, the Court does not articulate a limit on the circumstances in which it could exercise power under it. The effect, therefore, is that Indian procedural law may be applied to restrain parties’ conduct in any investment arbitration proceeding with an Indian party or dealing with Indian situated assets as its subject matter. Such a broad application of domestic procedural law to an ongoing investment arbitration is unprecedented. Indeed, the Court’s reliance on the English decision of Republic of Ecuador v. Occidental Exploration, [2005] EWCA Civ 1116, to justify this reasoning is incorrect because that judgment dealt with the jurisdiction of English courts to decide upon the enforceability of a final awardrendered under a BIT, as against jurisdiction in respect procedural issues connected to an ongoing proceeding.

Second,the Court erred in creating an imbalance in the rights accorded to parties to an investment arbitration proceeding. It observed that the treaty is distinct from a contractual agreement to arbitrate between the State and the investor. It then relied on this to hold that its power to restrain the conduct of parties to commercial arbitration proceedings at the procedural stage may be used in a similar manner only against investors in investment arbitration cases too. Not doing so, it held, would be like “lifting the status of the private investor to the pedestal of a foreign State”.  

While rendered in the context of an anti-arbitration injunction, the principle underlying the judgment is that an investor’s conduct during the procedural stages of an investment arbitration may be controlled by an Indian court. What is unclear, however, is whether similar control may be exercised over the conduct of a State (in a variety of possible instances, such as the presentation of a counter-claim against an investor, the introduction of evidence etc.) during these procedural stages. If a State’s (either Indian or foreign) conduct is, in fact, outside the scope of an Indian court’s control, it would mean that a State may approach an Indian court to restrain an investor’s actions at the procedural stage in this manner, but an investor would not have the reciprocal right to do so against a State.

This would result in a regression to an old understanding of international law, which saw only States as having rights and any independent standing in it. BITs have for long been acknowledged as instruments that disrupt that understanding, vesting direct rights in international law with private investors so as to place them on an equal footing with States for the purposes of the arbitration. In possibly creating this imbalance between an investor’s and State’s powers to approach an Indian court at the procedural stages of an investment arbitration, the judgment may unfairly skew the process in the State’s favour.

Third,despite its laborious reasoning used to extend the CPC to arbitration proceedings under BITs, the Court’s ultimate decision of choosing not to interfere in this case makes no reference to it. Instead, the Court acknowledges that an injunction in this case that is valid in domestic law may still not be valid in international law. It therefore holds that Indian courts would only retain jurisdiction to restrain international treaty arbitrations that are “oppressive, vexatious, inequitable or constitute an abuse of the legal process”, observing that it must always interfere on these grounds “with extreme hesitation”. While this language seems promising insofar as it appears to set the bar for interference very high, the Court never analyses how the facts of the present case do not fall within its scope. From a precedent-setting perspective for subsequent decisions by Indian courts, therefore, the judgment does not provide any guidance on what factors are to be considered in instances of anti-arbitration injunctions or other potential interventions at the procedural stage of investment arbitration proceedings.

Conclusion

Vodafoneis not the first instance of domestic courts asserting jurisdiction over investment arbitration disputes before the rendering of a final award. In fact, in GPF GP S.a.r.l. v. Republic of Poland rendered on 2 March 2018, the England and Wales High Court set aside an investor-state arbitral award on jurisdiction, precluding a hearing on merits by the tribunal. However, it did so by conducting a “rehearing” under the English Arbitration Act, 1996, as it does when deciding upon the validity of a final award at the enforcement stage too. English courts, therefore, may apply the Arbitration Act to determine the validity of an award, whether on jurisdiction or merits, but may not use general English civil procedural law to restrain any party’s conduct in an ongoing investment arbitration proceeding.

Vodafone, therefore, stands alone in extending domestic procedural law to ongoing investment arbitrations without a clear prescription of a limit on that power. It also draws an artificial distinction between States and private investors, giving States an outlet to further restrain the actions of investors during the pendency of a case. While it appears to be an “arbitration friendly” decision at first glance, a second look reveals that it has the potential to be misused to justify an interventionist approach to investment arbitrations by Indian courts in the future.

– Siddharth S. Aatreya

The post The Vodafone Anti-Suit Injunction – A Cautionary Note appeared first on IndiaCorpLaw.

The Vodafone Anti-Suit Injunction – A Cautionary Note published first on https://divorcelawyermumbai.tumblr.com/