Report No. 188
Fast track procedure in Suits and Case Management:
So far as fresh suits that may be filed after the commencement of the proposed Act, those will be dealt with keeping in mind the 'fast track' procedure indicated for 'fast track' arbitration in the 176th Report on "Arbitration and Conciliation Bill, 2002" with suitable modifications, to suit the procedure in Courts. The recommendations in that behalf are contained in Schedule IV of the Bill as annexed to the said Report of the Law Commission. Case management can be entrusted to a Single Judge in the Commercial Division. We mawing guidelines.
In the Commercial Division, the plaintiff must file along with the plaint, the relevant documents on which the plaintiff proposes to rely and the statement of the witnesses in chief examination by way of an affidavit and the draft issues that are likely to arise. Copies of these have to be sent to the opposite parties on the same date on which the plaint is filed; list of interrogatories, if any, application for discovery and production, if any, mentioning their relevancy, must also be sent likewise on the above said date itself. Plaintiff must also furnish the full address, including e-mail or fax, telephone numbers, if any, of all claimants and of all the parties, to the extent known to plaintiff, for the purpose of expediting communication and correspondence. A list of draft issues has also to be filed on the same date.
Within one month from the date of receipt of the copy of the plaint and other annexures as stated above, the defendant must file his written statement in the Commercial Division along with all the relevant documents, affidavit evidence in chief and applications referred to above as In the case of the plaintiff. He must also send copies thereof to the plaintiff. Simultaneously, if there is a counter-claim, he must file the claim along with the written statement coupled with the various documents referred to above. He must also file a draft of the issues that are likely to arise and send a copy thereof to the plaintiff.
In case the plaintiff wants to file a rejoinder, leave of Court will be necessary and he must apply within fifteen days of service of the written statement for this purpose and if permitted, must file rejoinder within one month of the order of the Commercial Division granting such permission.
The procedure for filing various documents and applications which applies to plaints will apply to counter-claims.
In case discovery or production of documents is allowed, the parties shall be permitted to file supplementary statements, within a period to be specified by the Commercial Division and they will be served on the opposite party, along with copies of documents and relevant affidavit evidence, if any.
In commercial suits pending in Courts subordinate to the High Court or on the original side of the High Court where the value of the subject matter is of the prescribed high value (i.e. Rs.1 crore or above), which shall stand transferred to the Commercial Division of the High Court, if pleadings had not been completed or evidence had not been recorded in these matters, the procedure indicated above which is applicable to fresh suits should also apply to the extent applicable, having regard to the stage at which the case is transferred or allocated to the Commercial Division.
In our view, single Judge in the Commercial Division should hold one or more 'Case Management Conferences' and fix a time schedule for finalisation of the issues and for cross-examination, if any, of witnesses, and also for filing written submissions and for oral submissions thereafter. Any conditional orders for these purposes fixing time limits, if they are likely to result in an ex parte order or order in default, should however be passed by the Bench of two learned Judges. The Commercial Division may apply the provisions of section 89 of the Code of Civil Procedure, 1908 for considering resolution of dispute by ADR methods.
It is also proposed that evidence in cross-examination or reexamination can be recorded by a learned single Judge in the Commercial Division and objections as to admissibility can be recorded by him but may be decided by the Bench of two learned Judges.
We also propose that the single Judge may appoint an Advocate Commissioner of not less than 25 years standing or a retired judicial officer of the rank of a District Judge or a retired senior Civil Judge, for recording such evidence in cross-examination or re-examination.
We may also point out that normally in such high value commercial cases, the evidence will be generally documentary and there will be very little or no oral evidence.
As pointed in the previous chapter, the Commercial Division will be equipped with all high tech systems referred to in the Chapter VIII, such as audio and video facilities, including video-conferencing. But, the installation of high-tech facilities need not be a requirement for the implementation of our proposals for constitution of the Commercial Division.
Party or counsel must file written submissions before oral submissions; and at the Case-Management Conference, all time limits including those for oral submissions must be fixed in advance.
Judgment of the Commercial Division has to be pronounced within thirty days of the conclusion of arguments and simultaneously copies thereof must be issued to all the parties through e-mail or otherwise.
The fast track procedure in the Commercial Division must be based on these broad guidelines.