INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Tanmay Sharma and Bhanu Jindal, AZB & Partners
conduct. The complainant should approach the magistrate or, where the offence is cognisable, the police authorities in order to initiate investi -
• irreparable injury would be caused to the claimant if such an injunction is not granted. This injunction is in personam. However, the injunction may also apply to third parties, where such third parties interfere with or obstruct the course of justice. Where a suit is instituted for seeking damages/ permanent injunction, the court fees payable will be computed as per the Court Fees Act, 1870 and the rules governing that specific court, which may be ad valorem (with or without caps, depending on where the action takes place). However, the fees payable for seeking an ad interim injunction under the suit may be a nomi - nal fee. Such fees may differ for different courts and would need to be computed accordingly. A similar right would be available to a party if it prefers an application under Section 9 of the Arbitration and Conciliation Act, 1996 (the “A&C Act” ), wherein such party can seek an ad interim injunction for preservation of assets or the sub - stratum of an arbitration, before, during and after the constitution of an arbitral tribunal but before execution of an arbitral award. As mentioned in 1.5 Proprietary Claims Against Property , the BNSS allows police officers to seize any property that may be involved in the commission of any fraudulent offence. Addition - ally, under the BNSS, a magistrate now has the power to issue attachment orders (including ex parte interim attachment orders) if it is of the opinion that a property is involved in proceeds of crime. These powers can be exercised at a pretrial stage and even before an accused per - son has the opportunity to plead and establish their innocence in a trial. Further, a criminal court also has wide powers to secure the custody of any property produced before it during the pen -
gation into the offence. Civil Law Proceedings
Where a claimant is filing a civil claim relating to a fraud alleged to have been perpetrated under a contract, such party should furnish a legal notice (usually a demand notice) or such pre-action steps as required under the dispute resolution clause in the contract. Moreover, specific legislation or provisions may have their own particular rules of pre-conduct action. For example, a claim under the Commer - cial Courts Act, 2015 (the “CC Act” ) requires the parties to have undergone pre-institution media - tion of the dispute where no urgent interim relief is sought by the claimant; a civil action against the government or a public official may only be instituted after a written notice has been served two months in advance, unless waived by the court. It is pertinent to mention that failure to adhere to pre-conduct action may be fatal to the claim in certain instances, specifically where the statute provides for this. 1.7 Prevention of Defendants Dissipating or Secreting Assets A victim of fraud may, while pursuing civil claims, file an application for a temporary injunction to prevent a party from alienating assets while adjudication on the claim is ongoing. The appli - cation must show that the common law criteria for an injunction are satisfied – ie: • there is a prima facie case in favour of the claimant; • the balance of convenience lies in favour of the claimant; and
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