The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015
2. Substitution of new section for section 35.
For section 35 of the Code, the following section shall be substituted, namely:––
1. In relation to any commercial dispute, the Court, notwithstanding anything contained in any other law for the time being in force or Rule, has the discretion to determine:
a. whether costs are payable by one party to another;
b. the quantum of those costs; and
c. when they are to be paid.
Explanation.—For the purpose of clause (a), the expression “costs” shall mean reasonable costs relating to—
i. the fees and expenses of the witnesses incurred;
ii. legal fees and expenses incurred;
iii. any other expenses incurred in connection with the proceedings.
2. If the Court decides to make an order for payment of costs, the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party:
Provided that the Court may make an order deviating from the general rule for reasons to be recorded in writing.
The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages. The Court holds that the Plaintiff is entitled to the money decree. However, it returns a finding that the claim for damages is frivolous and vexatious.
In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff being the successful party, for having raised frivolous claims for damages.
3. In making an order for the payment of costs, the Court shall have regard to the following circumstances, including—
a. the conduct of the parties;
b. whether a party has succeeded on part of its case, even if that party has not been wholly successful;
c. whether the party had made a frivolous counterclaim leading to delay in the disposal of the case;
d. whether any reasonable offer to settle is made by a party and unreasonably refused by the other party; and
e. whether the party had made a frivolous claim and instituted a vexatious proceeding wasting the time of the Court.
4. The orders which the Court may make under this provision include an order that a party must pay––
a. a proportion of another party’s costs;
b. a stated amount in respect of another party’s costs;
c. costs from or until a certain date;
d. costs incurred before proceedings have begun;
e. costs relating to particular steps taken in the proceedings;
f. costs relating to a distinct part of the proceedings; and
g. interest on costs from or until a certain date.’.