Friday, 8 December 2017

Commercial Courts Act, 2015


The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015
-Romit Chandrakar Sem.-3, HNLU, Raipur

Brief overview of the Act

The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 was enacted India for the creation of commercial divisions in high courts, and commercial courts at the district level. The Act provides for a separate set of Commercial Courts to be set up by State Governments at the District level to try suits and claims pertaining to commercial disputes of a value of at least Rs.1 crore and above. The Act also requires the High Courts to set up Commercial Appellate Divisions within each High Court to hear appeals from the orders of Commercial Courts and Commercial Divisions ("Courts") and endeavor to dispose of them within 6 months of their filing date. The Act also amends the Code of Civil Procedure, 1908 ("CPC") as will be applicable to the Courts, which shall prevail over the existing High Courts Rules and other provisions of the CPC, so as to improve the efficiency and expeditious disposal of commercial cases.[1]

Salient Features of the Act

1.     Meaning of ‘Commercial Disputes’
The term ‘Commercial Dispute’ has been given a wider meaning in the 2015 Ordinance. It provides an inclusive definition of commercial disputes to include almost every kind of transaction that gives rise to a commercial dispute’even in the most generic sense. The definition broadly includes commercial contracts disputes ranging from infringement of Intellectual Property Rights, exploitation of natural resources, insurance, to disputes between bankers, traders, merchants, etc. The Act also talks about disputes with respect to partnership agreements, shareholder agreements, joint venture agreements, mercantile documents, etc.[1]
2.     Constitution of Commercial Courts
The Act provides for constitution of various commercial courts:
  1. Commercial Courts- The Act makes provision for the constitution of Commercial Courts in every district of the state as well as union territory where the High Court of that concerned state or union territory does not have original jurisdiction. At present, there are only five High Courts which exercise original jurisdiction over the commercial disputes namely, the High Courts of Bombay, Calcutta, Delhi, Himachal Pradesh and Madras. However, with the coming of this Act, now each state will have its own commercial courts to decide upon commercial disputes.
  2. Commercial Divisions- Those High Courts which do not have original jurisdiction over cases related to commercial contracts will now have a Commercial Division to be set up within itself which is empowered to hear all applications with respect to commercial transactions.
  3. Commercial Appellate Divisions- These divisions will be set up in every High Court to hear appeals against (i) orders of Commercial Division of High Court; and (ii) orders of Commercial Courts. The appeal has to be filed within sixty days from the date of judgment. The Commercial Appellate Division is required to dispose of such an appeal within six months from the date of filing such Appeal. However, the Ordinance does not mention a statutory right to appeal to the Supreme Court from an order of the Commercial Appellate Division. Accordingly, a limit of one is imposed on a number of appeals allowed in case of commercial disputes. The Act also bars any revision application filed against any interlocutory orders passed by Commercial Court.[2]
3.     Valuation of Disputes-
Under the Ordinance, the Specialised Commercial Courts have jurisdiction to hear those cases pertaining to commercial matters where the value of the subject matter is more Rs. 1,00,00,000. The Bill also prescribes the manner of determining the value of a commercial dispute.

4.     Jurisdiction over Arbitration Matters
As far as Arbitration is concerned, the Act provides that all the matters dealing with international commercial arbitration must be brought within the ambit of High Court irrespective of the fact whether the High Court exercises such jurisdiction or not. However, there is a proviso added to this clause which provides that the matters pertaining to the appointment of arbitrators in international commercial contracts must be excluded from the purview of High Court’s jurisdiction. Commercial Court will also have the power to hear appeals filed against domestic arbitrations involving Indian parties, which initially lie before any civil court other than High Court exercising territorial jurisdiction over such arbitration.[3]

5.     Strict deadlines
The rules relating to the deadlines have been made more stringent by the Act. The Act provides for strict deadlines for conduct of case, filing of written statements, filing of documents, filing of written statements, etc. if any party fails to comply with the deadlines provided by the Act, they have to face serious consequences as the penalties are harsh such as forfeiture of right to make a filing or the right to rely on a document. A deadline of judges is also imposed through this Act. The Act states that the judgment should be pronounced within 90 days from the conclusion of the final arguments. [4]

6.     Innovative procedure
Several new procedures have also been adopted by the Act to make the process of hearing of the disputes faster. The Act states that following the procedure which is practiced in other countries, the Commercial Courts and Commercial Divisions will hold a case management hearing before going into the detailed hearing. Case management can be defined as a preliminary hearing in which the Court hear out the parties and frame the issues on which the hearing will proceed. The Court can also decide the dates on which various steps involved in the matter will be taken up, such as filing of evidence, examination and cross-examination of witnesses and the date of hearing the arguments of the party. The time limits for agreements may also be fixed by the Court during case management. One more procedural change which has been brought about by the Act is that the parties to the case are required to file their written arguments in advance of the oral hearing. This is to be done so that each party gets the time to prepare for the counter-arguments. 

7.     Costs 
The act has also provided some detailed guidelines with respect to the factors which the Court has to consider when giving the direction about costs, that whether one party should bear all or some of the cost of the other party, such as fees, expenses incurred in hiring lawyers, expenses in relation to witnesses, etc. the Act also states that in the regular course, the unsuccessful party will have to bear the cost of the successful party. The Act has also authorized the Court to impose costs on the parties depending on their conduct during the case. While imposing any such costs on the parties the Court should consider that whether a party has wasted the time of the Court, or refused to settle the matter by giving unreasonable expenses, or failed to comply with any direction which the Court gave during case management. The Court has also been given the authority to impose any amount of exemplary cost. It is very evident that the Act has taken a tougher stand with respect to costs. It is because the Act seeks to dispose of the matters quickly, and does not want the parties to prolong the matters unnecessarily. A party is less likely to seek adjournment if the party has to bear not only its own cost but also those of the other parties.[5]
8.     Limited Appeals
The Act provides a window of 60 days within which the parties can file an appeal against the order of the Court. Appeals would be filed before the Commercial Appellate Division of the appropriate high Court. The Act also states that the Appellate Division shall strive to dispose of the appeal within six months. The Act also states that the parties can appeal only against specified types of interim orders passed by the Commercial Courts and Divisions.









[1]Section-2 of Commercial Division and Commercial Appellate Division of High Courts Act, 2015

[2] Chapter-II from Section 3 to11 of Commercial Division and Commercial Appellate Division of High Courts Act, 2015


[3]Section-10 of Commercial Division and Commercial Appellate Division of High Courts Act, 2015

[4] Nishith Desai Advocates/ Introduction of Commercial Courts: End of Endless Litigation!/ http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/introduction-of-commercial-courts-end-of-endless litigation.html?no_cache=1&cHash=2747250a08f728e125b01c97278f334f/ last visited on December 08 2017


[5] Bulwark Solicitors/Provisions: Commercial Court of India/ http://www.bulwarksolicitors.com/litigation/commercial-courts-in-india-an-analysis-of-the-provisions-of-the-commercial-courts-commercial-division-and-commercial-appellate-division-of-high-courts-act-2015/ last visited on Dec. 08  2017

Friday, 17 February 2017

REMARKABLE ACHIEVEMENT IN SPACE

                       
REMARKABLE ACHIEVEMENT IN SPACE

      ISRO has scripted history by successfullly launching 104 satellites using a single rocket and broke Russia's record of 37 satellites. Just like the Mangalyaan Mission in 2014 ISRO once again proved India's mettle infront of the world. 
     Definitely, the record-setting launch of 104 satellites, including three Indian led by the advanced remote sensing satellite and 101 foreign satellites holds much significance.
         Last year on June 2016, ISRO had placed 20 satellites in orbit in a single shot which gave it confidence to raise the number of satellites to more than 100.
       But the problem is that technological excellence which ISRO has shown is rarely visible in other sectors like IT, defence, consumer goods etc. Today China has become manufacturing hub of the world. China is far ahead of us even in areas such as design, technology, innovation and scientific patents. 
        Our premier institutes such as IITs and NITs are best known for their undergraduate students rather than pioneering research. 
      If we have the talent, why we are not utilizing it and allowing brain-drain. ISRO is one epitome but we need many such examples in every sector. I agree with Mr. Mukesh Ambani's suggestion that, Trump may be a blessing in disguise if he prompts India to rethink its fundamentals, and start producing and innovating instead of just feeding talent to foreign shores.
        
                                          -Romit Chandrakar, Raipur, Chhattisgarh

Saturday, 4 February 2017

VISIONARY BUDGET

                              "VISIONARY BUDGET"


      The Budget 2017 is holistic in approach whose aim is to truly transform India. It has taken care of each segment. Budget reiterated Modi ji's commitment to double farmer's income over next 5 years. The other people friendly measure which deserve mention is 5% tax rebate (₹12,500) on income of ₹2.5 lakh to 5 lakh. Reducing the limit of cash donations of political parties to just ₹2000 is one of the most commendable moves made in this Union budget. The most distinctive part of Finance Minister's speech is detailed explanation of how India is largely a non tax-compliant country.

        In my opinion the lack of tax compliance has come about because of un-holy nexus between tax officials, Chartered accountant. and business owners. Though Budget 2017 cannot be regarded as populist or election budget but ahead of elections, it can't be denied that Centre's focus is on middle class people, farmers, poors & dalits.
        This budget encourages a shift to digital platforms. Initiatives like cash back to promote Aadhar-Pay and BHIM app will encourage consumers and businessmen to go cashless. The idea of Universal Basic Income (UBI) in economic survey is revolutionary and needs to be debated and discussed as UBI is an alternative to the current structure of subsidies. 
       
Still Jaitley Ji had to take measures if economy is to realise its full potential by quicken up the process to rollout GST on schedule. 
     All in all I can say my wishlist not implemented but its a visionary budget which did justice with Modi Ji's slogan of "Sabka Sath, Sabka Vikas".
        
           -Romit Chandrakar, Student-HNLU, Raipur, Chhattisgarh

Friday, 3 February 2017

DEMONETIZATION: Rumours v/s Reality

DEMONETIZATION:  Rumours v/s Reality

                
One month after revolutionary move of demonetisation
Government has announced incentives to promote cashless transactions
like 0.75 % discount on Petrol & diesel, 10% discount on online
booking of railway tickets, 10 % discount on card payments in toll
plazas, no service tax on transaction up to Rs. 2000 etc.
               In the first “Mann ki Baat” after the demonetization of
Rs. 500 and Rs. 1,000 notes, Prime Minister Modi urged for a movement
to turn India into a cashless society. He asked young people to teach
mobile banking and other e-commerce technology to at least 10
families. I think it’s a great start for coming new year 2017. And my
New Year resolution will be ''less-cash'' transactions and “more-card”
payment.
                 But the need of the hour is that Govt. should launch
more incentives to promote digital dealings. Govt should provide swipe
machines to more and more small and big businessmen to promote card
payments. All Government payments, starting from Panchayat to Govt. of
India should be made digital, this will give a big push and avoid a
lot of corruption in lower level where a villager is looted by the
babus.
               Demonetization, undoubtedly a great move but lacks
proper preparation. Govt. should take corrective measures to reduce
long queues in front of ATMs. Some pathological cynics think
criticizing is the only evidence of intelligence. There is no dearth
of such useless armchair critics in India.
              Go on, Modi ji, “Don’t hesitate in taking such bold
steps because if there are thousands of problems then there are
millions hands also to solve it.”
                                               -Romit Chandrakar,
Raipur (Chhattisgarh)
(I am a student of Hidayatullah National Law University, Raipur)

Heart of Asia Summit: A Big Diplomatic Victory for India

        HoA Summit: A Big Diplomatic Victory for India

Terror emanating from Pakistan dominated the discussions of ‘Heart of
Asia’ Ministerial Conference held in Amritsar where Afghanistan
President Ashraf Ghani directly blamed Pakistan for covertly
supporting several terror networks including Taliban, JeM etc. in
destabilizing Afghanistan.

     The issue of firming up an air cargo service pact will give India
a leverage in Afghanistan as Pakistan continue to deny transit link
through its territory

    In my view it is a major diplomatic victory for India that in a
conference which was attended by 40 countries concluded with a strong
joint declaration which called for concerted regional and
international cooperation to ensure elimination of terrorism and also
disrupting all financial, tactical and logistical support for all
terror networks.

        In past too we have been successful in isolating Pakistan
whether it would be the occasion of cornering Pakistan in SAARC summit
or when India got access into MCTR or when Sushma Swaraj lashed out at
Pakistan in UNGA over Pakistan’s hue and cry over Surgical Strike. In
HoA conference also Modi has been successful in his attempt to isolate
Pakistan without mentioning name, he called for a resolute action not
just against forces but also against those who support, shelter, train
& finance terrorism.

        Lastly I would like to suggest that “To defeat terrorism,
Pakistan must end extremism”.


                                    -Romit Chandrakar, Raipur (Chhattisgarh)

BREXIT: BAD FOR BRITAIN, BUT GOOD FOR INDIA


         Finally the people of Britain voted for Britain's exit or "Brexit" from the European Union in a historic referrendum. The result came out is surprising with 52% voted in favour of leaving EU while 48% wanted UK to remain in EU. The European Union which is often known as EU is an economic & political partenership involving 28 countries. It began after 2nd world war to foster economic co-operation. 
         I think the purpose behind Brexit is inefficiency of EU to manage the immigrants crisis which is creating trouble for the Britain.
         The Brexit victory sent economic shockwaves through global markets and its currency pound fell down to lowest against Indian Rupee since 31 years that will led to decline in the oil prices which is a good sign for Indian Economy.
        Even as its exit from EU has gotten most sectors worried but as far as India is concerned UK has become a more attractive destination for Indian travellers and students, thanks to the weaker pound.Though it would be difficult for me to predict the currency movement but this could mean likely saving of more than 5% for the Indians going to UK.  
       Brexit would slightly affect the Indian share market just for few days only though it could not have any longterm effect on Indian economy because it is well prepared to deal with such consequences as earliet we dealt the 2008 US recession. therefore in my view we don't need to worry. 
      As per last year's data, India had emerged as the 3rd largest source of FDI for the UK with various Indian corporates like TCS, Wipro, Infosys etc. are doing great business in UK. Therefore, undoubtedly the UK will remain a very good place to do business. One of the advantages of UK is that it is the natural home for any Indian business wanting to enter the European market.
      The economy, as well as language, rule of law, ease of doing business, time zone, and world-leading technical and intellectual innovation, these all are significant to the UK and Indian economic partnership.
             -Romit Chandrakar, Raipur

TRUMP NOT BAD, BUT HILLARY WILL BE GOOD FOR INDIA


       Donald trump, a business tycoon and US Presidential nominee
from Republican Party. Trump has become a trending topic all around
for his controversial speeches and his unpredictable rise as US
Presidential candidate. Though Mr. Trump is a business tycoon, but he
hails from 'Nationalism' background whose dream is to make America
free from Muslims & illegal migrants and that is the reason why
liberals doesn't like him.
                During his speech he said about changing rules and
hiking fees for Indian students on H-1 B visas. This visa is important
for Indian students who want to go to USA for higher studies. Donald
Trump blames India, China and other developing countries for snatching
US jobs.
                   I appreciate his views on condemning all forms of
terrorism be its ISIS, Al-Qaeda, Taliban or North Korea's nuclear
warning. He wants a united opposition of the whole world against
terrorism. Trump talks of India's support to counter China and in
return he also want to help India to combat the rogue nations like
Pakistan.
                       On the other side of the coin there's an
experienced politician Hillary Clinton is there. She is the wife of
42nd US President Bill Clinton and also served as US foreign Secretary
during Obama's first reign. It will be a history for world's largest
democracy (USA) to get the first female President. As far as India is
concerned Hillary will walk on the same path set by her predecessor
Obama.
                Few days back we have seen Modi-Obama's 7th meeting in
a short span of 2 years which reflects how deep India-US friendship is
and Hillary Ji will further strengthen this bondage. At last I can say
"Trump is not a bad guy but its Hillary Ji's to become the first lady
POTUS (President of The United States of America)".


      -Romit Chandrakar, Raipur