INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Jitesh Lakra, AZB & Partners
Indian law has evolved to permit joinder of non-sig - natories to an arbitration, be it domestic parties or overseas parties. Courts have also applied the “group of companies” doctrine for the joinder of parties to an arbitration. This doctrine was authoritatively rec - ognised by the five-judge Constitution Bench of the Supreme Court of India in Cox & Kings Ltd v SAP India (P) Ltd , 2023 INSC 1051. In doing so, the Supreme Court has held that consent may be implied in some situations to include a non-signatory to an agreement as party to an arbitration if the circumstances show that the mutual intention of all the parties was to bind both the signatory and the non-signatory affiliate. Fraud Under the Companies Act While the Companies Act provides punishment for fraud under Section 447, its application to overseas entities is limited. A foreign company, under Section 2 (42), refers to any company or body corporate incor - porated outside India which: • has a place of business in India, whether by itself or through an agent, physically or through an elec - tronic mode; and • conducts any business activity in India in any other manner. Under Section 379 of the Companies Act, where not less than 50% of the paid-up share capital of a foreign company is held by one or more citizens of India, or by one or more companies or bodies corporate incor - porated in India, whether singly or in aggregate, such company must comply with specified provisions of the Companies Act for its business in India as if it were incorporated in India. Further, Section 380 of the Companies Act provides for service of any process, notice or other document required to be served on a foreign companies, while Section 228 permits inspection, inquiry or investiga -
• any person on a ship or aircraft registered in India, wherever it may be; and • any person who commits an offence involving a computer source in India. Where such jurisdiction exists, the BNSS provides for an elaborate process for the valid service of summons or warrants, etc, in any contracting “state”, through an authority for transmission. India has entered into mutual legal assistance treaties/arrangements (MLATs) with various countries that provide for reciprocal arrangements for the serving of such judicial docu - ments. Such requests are processed by the Ministry of Home Affairs, which transfers such documents to the relevant Indian missions/embassies. The difference between the two categories of coun - tries is that the country where an MLAT is involved has an obligation to consider serving the documents, whereas non-MLAT countries do not have any obli - gation to consider such a request. Similarly, India has entered into various bilateral treaties that allow knowledge-sharing, mutual assistance and extradi - tion for enabling investigation, arrest and production of accused persons in India. Some expropriatory statutes, such as the PMLA, also allow attachment of property of equal value in India in cases where properties forming proceeds of crime are taken or held outside India. 4.2 Service of Proceedings out of the Jurisdiction The BNSS governs criminal procedure in India, includ - ing the issuance of summons by a court (or a police officer through the court) for the production of any document or material necessary for the purposes of any investigation, inquiry or trial. Such summons may be issued to any person believed to be in possession of relevant information. The BNSS also prescribes procedures for service of summons or warrants in a contracting “state”, through an authority for transmission. As stated in 4.1 Joining Overseas Parties to Fraud Claims , India has entered into MLATs with various countries/contracting states to facilitate such co-operation. India also participates in multilateral frameworks such as the FATF and Inter -
tion into their affairs. Criminal Proceedings
Indian courts may exercise jurisdiction over criminal acts committed with a fraudulent intent under the BNS when the act has been committed by: • any citizen of India residing beyond India;
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