THE COMMERCIAL DIVISION OF HIGH COURTS BILL, 2009 - AN OVERVIEW

[Mr. M. GOVINDARAJAN]

                        The Law Commission of India, in its 188th Report seeks to create Commercial Divisions with high-tech facilities within the High Courts to handle commercial cases of high threshold value, Rs.Five crore or higher value as may be specified on fast track basis. This report has been agreed to by the Chief Minister of States and Chief Justices of High Courts at a Joint Conference held on 16th August, 2009.

The Commercial Division of High Courts Bill, 2009 (Bill No. 139-C of 2009) is made to provide for the constitution of a Commercial Division in the High Courts for adjudicating commercial disputes and for matters connected there with or incidental thereto. The bill has 6 chapters dealing with the following:

Chapter I - Preliminary - Sec. 1 and 2;

Chapter II - Constitution and jurisdiction of Commercial Division of High Courts - Sec. 3 to6;

Chapter III - Specified value and its determination - Sec. 7 and 8;

Chapter IV - Procedure to be followed by Commercial Division of High Courts - Sec. 9 and 10;

Chapter V - Transfer of pending suits, applications or proceedings to Commercial Division of High Court - Sec. 11 and 12;

Chapter VI - Miscellaneous - Sec. 13 to 16.

COMMERCIAL DIVISION BENCH:

Sec. 3 provides that a High Court may, by order, constitute a division to be called the 'Commercial Division' of that High Court having one or more Division benches to settle commercial disputes involving an amount of Rs.5 crores or higher value as specified. The Judges of the Commercial Division shall be such of the Judges of the High Court as the Chief Justice of that High Court may, from time to time, nominate. Notwithstanding anything contained in any law for the time being in force, all suits relating to commercial disputes of specified value shall be filed in the High Court and such suits shall be allocated to the Commercial Division of that High Court. The Commercial Division of a High Court shall not entertain or decide any suit, application or revision application or proceeding relating to any commercial dispute in respect of which the jurisdiction of the civil court is either expressly or impliedly barred under any other law for the time being in force.

COMMERCIAL DISPUTE:

Sec. 2((1)(a) defines the terms 'commercial dispute' as a dispute arising out of ordinary transactions of merchants, bankers and traders such as those relating to enforcement and interpretation of mercantile documents, export or import of merchandise, affreightment, carriage of goods, franchising, distribution and licensing agreements, maintenance and consultancy agreements, mercantile agency and mercantile usage, partnership, technology development in software, hardware, networks, internet, website and intellectual property such as trade mark, copy right, patent, design, domain names and brands and such other commercial disputes which the Central Government may notify.

A dispute, which is commercial, shall not cease to be a commercial dispute merely because it also involves action for recovery of immoveable property or for realization of monies out of immovable property given as security or for taking any other action against immovable property.

A dispute which is not a commercial dispute shall be deemed to be a commercial dispute if the immovable property involved in the dispute is used in trade or put to commercial use.

An application under section 34 or section 36 or an appeal under Sec. 37 of the Arbitration and Conciliation Act, 1996 shall be deemed to be a commercial dispute if the amount in dispute or claim relates to a specified value.

Where in a suit, application, revision application or appeal filed in a High Court, or transferred to the High Court in accordance with the provisions of this Act or pending before the High Court, a dispute arises as to whether the subject matter of such suit, application, revision application or appeal, as the case may be, is a commercial dispute or not or such commercial dispute is of specified value or not, then, the said dispute shall be decided by the Commercial Division of that High Court.

DETERMINATION OF SPECIFIED VALUE:

The 'Specified value' means such value of the subject matter of the commercial dispute in a suit, appeal or application which is not less than five crore rupees or such higher value as the Central Government may, in consultation with the Government of the State or States to which the jurisdiction of the High Court extends, notify.

The specified value shall be determined in the following manner:

§         Where the relief sought is for recovery of money, the money inclusive of interest is computed up to the date of filing of the suit, appeal or application, as the case may be;

§         Where the relief sought relates to moveable property or to a right thereon, the market value of the moveable property as on the date of filing the suit, appeal or application, as the case may be;

§         Where the relief sought relates to immoveable property or to a right therein, the market value of the immoveable property, as on the date of filing of the suit, appeal or application, as the case may be;

§         Where the relief sought relates to any other intangible right, the market value of the said rights as estimated by the plaintiff;

§         Where the counter-claim is raised the value shall be on the date of counter-claim.

The manner of valuation and determination of the subject matter of commercial dispute shall override any provision for valuation of the subject matter of any suit under any law for the time being in force.

JURISDICTION AND PROCEDURE OF COMMERCIAL DIVISION IN ARBITRATION MATTERS:

§         Notwithstanding anything contained in the Arbitration and Conciliation Act, 1966 ('Act' for short for this topic)  all applications under sections 34 and 36 and all appeals under section 37(2)(1) relating to commercial disputes of specified value shall be filed in the High Court and such shall be allocated to the Commercial Division of that High Court;

§         Every application under section 34 or section 36 or appeal under section 37 of the Act in any subordinate to a High Court or pending in a High Court immediately before the issuance of any order shall be transferred to Commercial Division of that High Court; 

§         The applicant and the opposite parties shall file paper books within sixty days from the date of service of notice on such parties or from the date of issue of the order for the constitution of Commercial Division;

§         Within thirty days from the date of filing of the paper books, all parties to the proceedings shall file brief written submission after exchanging copies of the same;

§         Where any party fails to comply with the time limit, if reasonable cause is shown, the Commercial Division may extend the time limit for a further period not exceeding thirty days subject, however to such order as to costs as the Commercial Division may deem fit;

§         Every application or appeal shall be disposed of by the Commercial Division as expeditiously as possible and endeavor shall be made to dispose of the matter within one year from the date of service of notice on the opposite party.

PROCEDURE:

Sec. 9 deals with the fast track procedure to be followed by Commercial Division of High Court. Except to the extent otherwise provided by or under this Act, the Commercial Division of a High Court shall follow the procedure specified in the Code of Civil Procedure, 1908; The following procedure shall be followed by Commercial Division of every High Court, in respect of the subject matter of commercial dispute of specified value in a suit which is filed on or after the commencement of this Act, namely:

§         The plaintiff shall file along with the plaint-

Ø      the documents on which he sues or relies;

Ø      as many copies of the plaint and documents as to the number of defendants;

Ø      an affidavit containing his statement of examination-in-chief;

Ø      affidavits containing statements of other witnesses in examination-in-chief;

Ø      brief issues that are likely to arise;

Ø      list of interrogatories, if any;

Ø      application for discovery and production of documents, if any, maintaining their relevancy;

Ø      such other material as the plaintiff may consider necessary;

Ø      full address, including e-mail, fax and telephone number of all the claimants and defendants to the extent known to the plaintiff;

§         The plaintiff shall furnish along with the plaint, requisite fee for service of summons on the defendants;

§         Where the plaintiff furnish electronic mail addresses of the defendants, he shall be directed by the Commercial Division, without any prejudice to the procedure for delivery of summons referred to in Order V of the CPC to send summons along with the copy of the plaint to the defendant by electronic mail;

§         The defendants shall, within a period of one month from the date of receipt of the copy of the plaint along with all the relevant documents file his written statement along with all documents except copies of plaint referred to;

§         The defendants shall, along with the written statement, also file counter-claim, if any, along with all documents except the copies of plaint or documents ;

§         The defendants shall also send copies of written statement and all documents filed along with the written statement, to the plaintiff;

§         The plaintiff shall, at the time of trial, file affidavit containing evidence in examination-in-chief of other witnesses, if any;

§         The plaintiff may, within fifteen days of service of the written statement, apply to the Commercial Division for granting leave for filing of rejoinder;

§         The plaintiff shall file rejoinder within one month from the date of the order of the Commercial Division granting leave to file such rejoinder;

§         Where the Commercial Division allows nay application for discovery of documents, plaintiff and the defendants, as the case may be, shall be permitted to file supplementary statements, within a period as may be specified by the Commercial Division;

§         For the purposes of recording of statement in cross-examination and re-examination of parties and witnesses, the Commercial Division may appoint an advocate not less than twenty years standing at Bar or a Judicial Officer not below the rank of Senior Civil Judge as Commissioner;

§         All parties shall file written submission before the commencement of oral submission;

§         The time limits for making submissions (including oral submissions) shall be fixed in advance, at the case management conference;

§         A single Judge may -

Ø      Hold one or more case management conferences;

Ø      Fix a time schedule for finalization of issues, cross-examination of witnesses, filing of written submission and for oral submission;

Ø      Provide for record of evidence in cross examination and re-examination;

Ø      Appoint commissioner for recording of cross-examination or re-examination provided any order for the purpose of fixing limits which may lead to the disposal of the matter for default or ex-parte, shall be passed by a Bench of two judges;

Ø      Any objection as to the admissibility of any evidence may be recorded by single judge but shall be decided by the Bench of two judges sitting in the Commercial Division.

§         The Commercial Division, within thirty days of the conclusion of argument, shall pronounce judgement and copies thereof shall be issued to all the parties to the dispute through electronic mail or otherwise.

APPEAL:

An appeal shall lie to the Supreme Court against any decree passed by the Commercial Division. The word 'decree' shall include all decrees which are to be treated as decrees for purpose of Rule 4 of Order XXI, Rule 58 and Rule 103 of Order XXI of the CPC.

EXECUTION OF DECREE:

The decrees or orders passed by the Commercial Division shall be executed by the said Division and the provisions of CPC relating to execution of decree or order shall, so far as may be, apply to the Commercial Division.

OTHER POINTS:

§         The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force;

§         Save as otherwise provided, the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act;

§         The High Court may, by notification, make rules for carrying out the provisions of this Act;

§         Every notification made under this Act shall be laid, as soon as may be, after it is made, before each House of Parliament;

§         The Commercial Division of High Court Bill, 2009 was passed by the Lok Sabha on 18th December, 2009 and laid down on the Table of Rajya Sabha on 18.12.2009;

§         Rajya Sabha adopted and referred to a select commotion of Rajya Sabha headed by Prof. P.J. Kurian, Member, Rajya Sabha for examination and report.