INDIA Law and Practice Contributed by: Nitin Sarin and Vistasp Irani, Sarin & Co
3.4.2 Security Trustees’ Enforcement of Their Rights A security trustee may enforce its rights under a security assignment pursuant to only a notice and acknowledgement executed by the lessor and the relevant lessee. 3.4.3 Application of Foreign Laws Domestic courts in India will uphold foreign law as the governing law, as well as submission to a foreign juris - diction, subject to this not being opposed to Indian public policy. 3.4.4 Recognition and Enforcement of Foreign Judgments and Arbitral Awards Please see 2.6.6 Domestic Courts’ Recognition of Foreign Judgments/Awards regarding the enforce - ment of foreign judgments and arbitral awards. 3.4.5 Secured Parties’ Right to Take Possession of Aircraft There is no remedy for self-help in India. Peaceful repossession of the aircraft can be obtained without judicial intervention. In cases where there is no co- operation, the secured party has the option to apply to a court. 3.4.6 Domestic Courts Competent to Decide on Enforcement Actions The court in which an enforcement action under a security agreement/aircraft mortgage is decided would depend on the jurisdiction in India where the dispute arises and the nature and value of the claim. 3.4.7 Summary Judgments or Other Relief Summary judgment may only be effective in cases where a secured party seeks to recover debt and other monies under the security agreement. There are no conditions that need to be complied with, apart from the fact that court fees will need to be paid on the amount claimed by the defaulting defendant. 3.4.8 Judgments in Foreign Currencies On the request of a secured party, courts in India would pass judgment in a foreign currency.
Third-party government entities have the right to arrest, detain, attach or sell an aircraft for the payment of amounts owed. However, under the new regime in India, these dues are limited to three months prior to the date of application by the IDERA holder. 3.3.2 Timeframe to Discharge a Lien or Mortgage A lien can be discharged immediately on payment of the monies owed to the party exercising the lien. 3.3.3 Register of Mortgages and Charges There is a register of charges maintained by the Reg - istrar of Companies. However, only Indian owners of aircraft assets are required to register a charge against such aircraft with the Registrar. The interests of the aircraft mortgagee or security trustee shall be noted on the aircraft’s certificate of registration and on the aircraft register maintained by the DGCA. Such regis - tration shall result in notice to all third parties regard - ing the interest of the security trustee or mortgagee in the aircraft. Furthermore, the DGCA shall also always require the consent of the mortgagee/security trustee named on the certificate of registration/aircraft reg - ister for any amendment of the entries in relation to the aircraft. 3.3.4 Statutory Rights of Detention or Non- Consensual Preferential Liens Fleet-wide detention of aircraft taken on an operating lease, especially after the termination of the operating lease, would not be recognised. 3.3.5 Verification of an Aircraft’s Freedom From Encumbrances A potential purchaser of an aircraft must check the aircraft register maintained by the DGCA as well as the International Registry maintained under the Cape Town Convention and Aircraft Protocol. 3.4 Enforcement 3.4.1 Differences Between Enforcing Security Assignments, Loans and Guarantees In the practical sense, there should be no difference in enforcing a security assignment as opposed to a loan or guarantee.
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