INDIA Law and Practice Contributed by: Aditya Jalan, Urvashi Misra, Bhagya K. Yadav and Sushrut Garg, AZB & Partners
6. Interim Remedies 6.1 Availability of Interim Relief
6.4 Security for Costs Under Order XXV Rule 1 CPC, courts may require a plaintiff to furnish security for the defendant’s costs at any stage of the suit. The court is may direct security for costs where it appears that the plaintiff resides outside India and does not possess sufficient immovable property with- in India (other than the property in dispute) (Order XXV Rule 1 (1) Proviso, CPC). The power to order security for costs is discretionary in other cases, and must be exercised for reasons to be recorded by the court (Premchand, re, ILR (1894) 21 Cal 832; Arumugam Chettiar v K . R . S . Sevugan Chettiar , AIR 1950 Mad 779: (1950) 2 M LJ 159; Nar- asinga Shenoi v Madhava Prabhu , AIR 1960 Ker 45). 6.5 Interim Injunctions A party to a civil proceeding may apply for interim injunctions under Order XXXIX Rules 1 and 2 of the CPC. While granting interim injunctions, the Courts consider the trinity test ie, establishing a prima facie case, balance of convenience, irreparable injury or harm. Such applications are made during a suit, and a party may seek a temporary injunction any time after its commencement to prevent breach or injury. Interim injunctions are granted when disputed property risks damage or alienation, or when the defendant threat- A party may apply for summary judgment in a com- mercial dispute under Order XIII-A of the CPC. An application for summary judgment may be made after summons have been served on the defendant but before issues are framed in the suit. Order XXXVII of the CPC also provides the right for to a party to file a summary suit, which is a fast-track mechanism for recovering liquidated or monetary claims based on written contracts, promissory notes, bills of exchange etc. Summary judgment may be granted where the court considers that the plaintiff has no real prospect of suc- ceeding on the claim or the defendant has no real ens dispossession or injury. 6.6 Summary Judgment
The most common form of interim relief is a tempo- rary injunction, which may be granted under Order XXXIX Rules 1 and 2 of the CPC. In addition, courts may order attachment before judgement under Order XXXVIII Rule 5 of the CPC, where the defendant is attempting to dispose of or remove property with intent to obstruct or delay the execution of a decree. Further, courts retain inherent powers under Section 151 of the CPC to make such orders as may be neces- sary for the ends of justice or to prevent abuse of the process of the court. 6.2 Interim Relief to Support Arbitration and ADR Indian courts are empowered to grant interim relief in support of arbitration proceedings under the Arbitra- tion Act. Section 9 of the Arbitration Act expressly permits a party to apply to a court for interim meas- ures. This includes orders for preservation, interim custody or sale of goods, securing disputed amounts etc. Indian courts have recognised that interim relief under Section 9 is intended to preserve the subject matter of the dispute and protect the efficacy of the arbitral process. 6.3 Timing of Applications for Interim Relief In civil litigation, applications for interim relief, most commonly in the form of temporary injunctions under Order XXXIX Rules 1 and 2 of the CPC, may be made at the institution of the suit or at any stage thereafter where the circumstances so require. Section 9 (1) allows parties to seek interim relief before, during, or after arbitration (before enforcement of the award). After the tribunal is constituted, Section 9 (3) limits court intervention, allowing interim relief only if the remedy under Section 17 (which empowers the arbitral tribunal to pass interim measures of protection during arbitration proceedings) is ineffective. Accordingly, interim relief can be sought at various stages but is most commonly invoked early or in urgent situations to protect rights pending final adju- dication.
285 CHAMBERS.COM
Powered by FlippingBook