Report No. 253
2.9.1 Clause 9 which lists out the procedural provisions, which apply to the trial of a commercial dispute before the Commercial Division has a number of defects which creates problems in the implementation of the Bill. These are described below.
2.9.2 First, though the provisions of the Bill prevail over the CPC, there is no clarity as to whether they will prevail over the original side rules of the High Courts that have such original jurisdiction. Whereas the Supreme Court in Vidyawati Gupta v. Bhakti Hari Nayak, (2006) 2 SCC 777 has made it clear that in case of a conflict between the rules of a High Court and the CPC, the rules of the High Court will prevail, the 2009 Bill provides an additional set of procedural rules without clarifying whether the Bill or the High Court rules will prevail in the event of a conflict.
2.9.3 Second, the requirement to file the affidavits of the plaintiff and the witnesses at the time of filing the case, as required by sub-clauses (2)(a)(iii) and (iv) of Clause 9 even before the defendants have come forward to accept or refute the claims is impractical and is a needless burden on the litigants. Similarly, the defendant cannot be expected to file statements of witnesses at the time of filing a reply when the points of difference between the parties are not known.
2.9.4 Third, likewise requiring a statement on the draft issues under sub-clause (2)(a)(v) of Clause 9 even before the defendant has filed a response is impractical.
2.9.5 Finally, while Clause 9 provides for a "case management conference" to be held by the judge, the Bill does not provide sufficient particulars as to how such a case management conference should be conducted given that a new procedure is being introduced in the course of trial. Additionally, it does not indicate in detail the procedure to be followed, persons who are required to be present at the case management conference, and whether such conference will constitute a separate hearing of the case, or be carried out in chambers.
It does not indicate the powers of the judge, while conducting the conference, the consequences of non-compliance and the desired and expected results in such cases. A "case management conference" has different connotations in different jurisdictions and since it is being introduced for the first time in India, it is necessary to clarify the meaning and scope of the term in the Indian context.