INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
Service on Defendants Not Residing Within India India is a signatory of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents 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 entitled to file its writ- ten defence unless it is specifically permitted to do so by the court on a subsequent application 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 represented in such suit by a representative. Some statutes, such as the Companies Act and the Consumer Protection Act, 2019, have codi- fied the law on class actions, providing specific conditions and circumstances under which class action proceedings may be initiated and consid- ered maintainable. The constitutional courts in India also have the power to entertain class actions under writ juris- diction, such as “public interest litigation”. Orders
passed in proceedings are generally binding on the class of persons, even if any such persons are not represented in such proceedings. 3.8 Requirements for Cost Estimate There is no requirement to provide clients with a cost estimate of potential litigation under Indian law.
4. Pre-trial Proceedings 4.1 Interim Applications/Motions
Under the CPC, parties can file interim applica- tions even prior to commencement of trial and substantive hearing of the claim. For instance, parties can file an application seeking: • rejection of the plaint by the defendant on various grounds; • return of the plaint to the appropriate/jurisdic- tional court; • protection/preservation of the subject matter of the dispute; and • the appointment of local commissioners/ receivers to carry out certain acts in relation to the subject matter of the dispute. Such applications are not limited to case man- agement; parties can obtain substantive reme- dies pending final hearing in the matter, including interim relief for maintenance of the status quo, interim injunction, the appointment of local com- missioners, the attachment of properties before judgment, judgment on admission, etc. 4.2 Early Judgment Applications Parties can seek specific orders from the court on certain issues that would have a final impact on the suit itself, prior to full-fledged adjudica- tion on the merits of the case. Examples of such actions include the following.
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