INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
• 12 years for the execution of a decree. 3.3 Jurisdictional Requirements for a Defendant A court that has original jurisdiction will have jurisdic- tion to entertain a claim against a defendant if: • the defendant habitually resides, carries on busi- ness or works for gain within the court’s territorial jurisdiction; • the cause of action or part of the cause of action has arisen within the territorial limits of such court; and/or • the immovable property that is the subject matter of the claim lies within the territorial jurisdiction of the court – this principle is applicable to all courts of original jurisdiction. Subject matter is also a determinable factor for the jurisdiction of a court. Specific statutes may confer jurisdiction on different courts/tribunals for certain subject matters of dispute; please see 1.2 Court Sys- tem . The jurisdiction of courts is also determined by the pecuniary/monetary value of the claim. 3.4 Initial Complaint Under the provisions of the CPC, a civil claim/suit is instituted by filing a plaint, which is a statement of claim setting out the facts, the cause of action and the relief sought. Amendment of the plaint is permitted under the CPC in certain circumstances. Judicial precedent has developed over the years that prescribes the condi- tions where such amendments would be permitted or disallowed. 3.5 Rules of Service Rules of service are provided under the CPC. Upon the filing of a suit, the court issues summons to the defendant to appear and answer the claim and file its written statement of defence. Summons can be issued and intimated to the defendant ordinarily by post, and by other means in certain cases, including email and courier. The cost of service of summons (ie, a “process fee”) has to be borne by the plaintiff.
Summons can be served to a defendant outside the territorial jurisdiction of the court. As mentioned in 3.3 Jurisdictional Requirements for a Defendant , if the cause of action or part of the cause of action has arisen within the territorial jurisdiction of the court, the defendant would be amenable to the jurisdiction of such court even if the defendant resides outside the local limits of the court’s jurisdiction. Service on Defendants Not Residing Within India India is a signatory of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Docu- ments in Civil or Commercial Matters, so the service of summons to a defendant residing abroad (in a country that is also a member) has to be in accordance with said convention. 3.6 Failure to Respond If the defendant fails to appear before the court despite proper service of the court summons, the court may order that the suit shall be heard ex parte – ie, in the absence of such defendant. Once the defendant has proceeded against ex parte, the defendant is not enti- tled to file its written defence unless it is specifically permitted to do so by the court on a subsequent appli- cation for setting aside the ex parte order. 3.7 Representative or Collective Actions The CPC permits the prosecution of a suit by way of representative action (similar to a class action), in order to enable a class of persons having the same interest in a suit to either sue or be sued through a representative. The court in such suit gives notice to all persons interested in the suit, either by personal summons or by public advertisement. A decision in such suit will be binding on all persons who are rep- resented in such suit by a representative. Some statutes, such as the Companies Act, 2013 and the Consumer Protection Act, 2019, have codified the law on class actions, providing specific conditions and circumstances under which class action proceedings may be initiated and considered maintainable. The constitutional courts in India also have the power to entertain class actions under writ jurisdiction, such as “public interest litigation”. Orders passed in pro- ceedings are generally binding on the class of per-
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