One Nation One Ombudsman

*(By Dr.Syamjith Parakkott)

The customer complaints are inevitable in any business, especially in banking, where people entrust their money and valuables into the custody of the Bank. Many often, Banks are being bogged down by rising customer complaints. Today, Banks accord top most priority in resolution of customer complaints. In this context, to support banksand customers in easy resolution of the complaints, the Reserve Bank of India has introduced the concept of “One Nation One Ombudsman” through the Integrated Ombudsman Scheme 2021. The Reserve Bank of India has repealed the earlier Banking Ombudsman Scheme 2006 and launched Integrated Ombudsman Scheme (hereafter referred to as IOS) 2021 vide Circular no. R&DB/CM&CS - CS/3/2021 – 22 dated 07.12.2021. The new IOS 2021, integrates the existing three Ombudsman schemes of RBI namely: - (i)  The Banking Ombudsman Scheme, 2006; (ii) The Ombudsman Scheme for Non-Banking Financial Companies, 2018;and   (iii) The Ombudsman Scheme for Digital Transactions, 2019.

2. In today’s customer centric banking space, the number of complaints pending before the Ombudsman has become the yardstick of the functioning of the internal grievance redressal mechanism and customer service of each bank/financial institutions. The bank are carrying an inherent reputational risk if the cases filed with the Banking Ombudsman are not handled promptly and properly.

3. It is good news to all Bank’s customers that the new scheme makes RBI Ombudsman mechanism jurisdiction neutral. The complaint may be lodged online through the portal designed for the purpose (https://cms.rbi.org.in). The complaint may also be submitted through electronic or physical mode to the Centralised Receipt and Processing Centre as notified by the Reserve Bank. The complaint, if submitted in physical form, shall be duly signed by the complainant or by the authorised representative. The complaint shall be submitted in electronic or physical mode in such format and containing such information as may be specified by Reserve Bank.

4. The Reserve Bank of India first formulated the Banking Ombudsman Scheme, 2006 which is being amended from time to time. The Reserve Bank of India through the IOS Scheme 2021, intends to provide cost-free redress of customer complaints involving deficiency in services rendered by banking/financial entities regulated by RBI. The customers have got right to lodge the complaint with Ombudsman, if the compliant is not resolved to the satisfaction of the customers or complaint is not replied by the
bank/financial institution within a period of 30 days.

5. In terms of IOS, any customer aggrieved by an act or omission of the Bank resulting in deficiency in service may file a complaint under the Scheme personally or through an authorised representative, other than an Advocate, duly appointed and authorised in writing to represent the complainant in the proceedings before the Ombudsman. However, no complaint for deficiency in service shall lie under the Scheme in the matters involving commercial judgment/commercial decision of a Bank. Further, any dispute between a vendor and a Bank relating to an outsourcing contract, general grievances against Management or Executives of a Bank, a dispute in which action is initiated by a Bank in compliance with the orders of a statutory or law enforcing authority, a dispute between involving employee-employer relationship of a Bank, etc., shall not be considered as a compliant.

6. A complaint under the Scheme shall be admissible under the following conditions: -

    i.  Only if a written complaint to the Bank was rejected wholly or partly by the Bank    or

    ii. The complainant is not satisfied with the reply; or

    iii. The complainant had not received any reply within 30 days after the Bank received the complaint.

7. A complainant has to bear in mind, the following points before lodging a complaint with the Ombudsman: -

8. The complaint shall be filed before the Ombudsman, within one year after the complainant has received the reply from the Bank or where no reply is received, within one year and 30 days from the date of the complaint. The complainant should also ensure that the present complaint is not in respect of the same cause of action which is already pending before an Ombudsman or settled or dealt with on merits by an Ombudsman or pending before any Court or any other Forum or Authority. It should also be ensured that the complaint is not abusive or frivolous or vexatious in nature. The complaint to the Bank should be made before the expiry of the period of limitation prescribed under the Limitation Act, 1963.

9. The Banking Ombudsman is empowered to direct the Bank to provide any infor-mation or furnish certified copies of any document relating to the complaint which are or is alleged to be in possession of the Bank. In the event of failure of the Bank to comply with the requisition without sufficient cause, the Ombudsman may draw an inference that the Bank has no information to furnish.

10. A complaint filed before the Ombudsman shall deemed to be resolved: -

(a) if the complaint has been settled by the Bank with the complainant upon the intervention of the Ombudsman; or

(b) if the complainant has agreed in writing that the manner and the extent of
resolution of the grievance is satisfactory; or

(c) if the complainant has withdrawn the complaint voluntarily.

11. The Ombudsman may reject a complaint at any stage if it appears that the complaint made is non-maintainable under RBI IOS 2021 or is in the nature of offering suggestions or seeking guidance or explanation. The Ombudsman may also reject a complaint at any stage under the following conditions: -

   i.  if in his opinion there is no deficiency in service; or

  ii.  the compensation sought for the consequential loss is beyond the power of the

       Ombudsman to award the compensation or

  iii.  the complaint is not pursued by the complainant with reasonable diligence; or

  iv.  the complaint is without any sufficient cause; or

  v.  the complaint requires consideration of elaborate documentary and oral evidence and the proceedings before the Ombudsman are not appropriate for adjudication of such complaint; or

  vi.  in the opinion of the Ombudsman there is no financial loss or damage, or inconvenience caused to the complainant.

12. The Ombudsman through its award can direct the Bank for specific performance of its obligations and for making payment to the complainant by way of compensation for any loss suffered by the Bank’s customer. However, the Award passed shall lapse and be of no effect unless the complainant furnishes a letter of acceptance of the Award in full and final settlement of the claim to the Bank, within a period of 30 days from the date of receipt of the copy of the Award. If the Bank is accepting the award, it may contact the customer and get the acceptance of award. Thereafter, Bank may comply with the award within a stipulated period of 30 days and intimate compliance to the Ombudsman within 30 days from the date of receipt of the letter of acceptance from the complainant. If the customer is not agreeable with the award, he/she may prefer an appeal before the Appellate Authority within 30 days of the date of receipt of the Award or rejection of the complaint. Likewise, if the Bank is aggrieved with the award, it may also prefer an appeal before the Appellate Authority. An appeal may be filed by the Bank only with the previous sanction of the Managing Director. The Appellate Authority may, if he is satisfied that the complainant had sufficient cause for not making the appeal within the time, may allow a further period not exceeding 30 days.

13. In case, the Bank omits or fails to file its written version and documents within the time, the Ombudsman may proceed ex parte based on the evidence available on record and pass appropriate Order or issue an Award. There shall be no right of appeal to the Bank in respect of the Award issued on account of non-response or non-furnishing of information sought within the stipulated time.

14. The Appellate Authority may, after giving the parties a reasonable opportunity of being heard:

(a) dismiss the appeal; or

(b) allow the appeal and set aside the Award or order of the Ombudsman; or

(c) remand the matter to the Ombudsman for fresh disposal in accordance with such directions as the Appellate Authority may consider necessary or proper; or

(d) modify the order of the Ombudsman or Award and pass such directions as may be necessary to give effect to the order of the Ombudsman or Award so modified; or

(e) pass any other order as it may deem fit.

15. The Ombudsman has to contact the Bank and customer and hold the meeting in an amicable environment. The Banks are under obligation to educate the customer about the relevant provisions contained in Bank’s Internal Guidelines, RBI Guidelines and Standards of the BCSBI Code. The Banks shall also train their officials to reply to all customer queries patiently and in a pleasing manner.

16. The Ombudsman shall endeavour to promote settlement of a complaint by agreement between the complainant and Banks through facilitation or conciliation or mediation. The proceedings before the Ombudsman shall be summary in nature and shall not be bound by any rules of evidence. The Ombudsman may examine either party to the complaint and record their statement.

17. A study conducted to analyse the nature of complaints received by Ombudsman reveals that the major complaints are in the nature of delay in payment of pension, difficulties in sanction and disbursement of Home Loans, problems in digital transactions, misbehaviour of bank staff, etc. The RBI expect that the Banks should make efforts to resolve the complaints as the complaints are being received at Bank’s level at least 30 days before lodging of the complaint with the Ombudsman. The Banks are also under obligation to display salient features of the Scheme for Knowledge of the Public.

The Banking Ombudsman scheme is mutually beneficial to both the Bank and its customers. It gives an opportunity to the Bank to understand the problems faced by the customers and come up with solutions to resolve it. The American author, Zig Ziglar once stated that “The complaining customer represents a huge opportunity for more business”. Likewise, the Banks today is taking the resolution of the customers complaint as a chance to retain customers and enhance customer experience. Hope “One Nation One Ombudsman Scheme” will act as a catalyst for harmonious resolution of customers complaints in Banking Industry.

In Quest of Justice

(K. Ramakumar, Sr. Advocate, High Court of Kerala)

“Sometimes, inquest of justice, we end up doing injustice.”

-- Justice Pankaj Mithal in High Court Bar Association, Allahabad v. State of U.P. (2024 (2) KLT 163 (SC) = 2024 KLT OnLine 1139 (SC) = (2024) 6 SCC 267).

The issue involved in the case is whether Asian Resurfacing of Road Agency Pvt. Ltd. (2018 (2) KLT 158 (SC) = (2018) 16 SCC 299) had crossed the limits in restricting interim orders. The Apex Court took note of the pitfalls in our legal system and the inordinate delay which has become part of it.

“In our legal system, which is facing a docket explosion, an order of remand should be made only as a last resort. The orders of remand not only result in more delays but also increase the cost of litigation. Therefore, to avoid the possibility of passing an order of remand, the grant of stay of proceedings is called for in many cases.”

The Apex Court also quoted from Abdul Rehman Antulay V. Nayak (1992 (1) KLT OnLIne 903 (SC) = (1992) 1 SCC 225 at page 268).

“But then speedy trial or other expressions conveying the said concept — are necessarily relative in nature. One may ask — speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind.”

“In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable — broadly speaking. Of course, if it is a minor offence — not being an economic offence — and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter.”

This is not confined to the criminal courts. The Apex Court adds,

“There is a huge filing of regular appeals, both civil and criminal in High Courts. After all, the High Courts deal with many other important matters, such as criminal appeals against acquittal and conviction, bail petitions, writ petitions, and other proceedings that involve the issues of liberty under Article 21 of the Constitution of India. The High Courts deal with matrimonial disputes, old appeals against decrees of civil courts, and appeals against appellate decrees. There are cases where senior citizens or second or third-generation litigants are parties. The High Courts cannot be expected to decide, on a priority basis or a day-to-day basis, only those cases in which a stay of proceedings has been granted while ignoring several other categories of cases that may require more priority to be given.”

Please see further,

“The figures of pendency of cases in our trial Courts are staggering. There are different categories of cases which, by their very nature, are required to be given utmost priority, such as the cases of the accused in jail and the cases of senior citizens. For example, there are many legislations like the Hindu Marriage Act, 1955, the Protection of Women from Domestic Violence Act, 2005, the Negotiable Instruments Act, 1881 etc. which prescribe specific time limits for the disposal of cases. However, due to the huge filing and pendency, our Courts cannot conclude the trials within the time provided by the statutes. There is a provision in the Code of Criminal Procedure, 1973, in the form of Section 309, which requires criminal cases to be heard on a day-to-day basis once the recording of evidence commences. The same Section provides that in case of certain serious offences against women, the cases must be decided within two months of filing the charge sheet. Unfortunately, our Criminal Courts are not in a position to implement the said provision.”

The picture presented by the Highest Court of the Country is truly alarming. It is not for nothing that the Hon’ble Chief Justice of India recently in a speech said, “The Courts are not of the Judges, by the Judges, and for the Judges”. The Hon’ble Chief Justice of India bluntly said that the litigant has lost confidence in the system and is avoiding approaching it.

What are we to do then to enervate this enduring and eluding enigma? Numerous committees, commissions, recommendations etc. have been made in this regard besides the lament in judicial pronouncements. The High Court of Kerala, in one of the judgements confessed that it is not able to devote time to large number of pending criminal appeals where the convicts are in prison. Such is the state of affairs in almost all the High Courts.

Some of the Judges of the High Court of Kerala get up at 4 o’clock and sleep at 11 o’clock after a toiling day’s work. Still such hard and dedicated work do not appear to be rewarding. At the other end, there are Judges who even omit to pronounce or sign judgements before they demit office. Committed and hard-working Judges face intense health problems as well.

A litigant enters the court with a belief that he will get speedy and fair adjudication. The never ending litigation tires him out and he resorts to deviant methods. It is the common man who needs the courts more than the corporates.

The conscientious among the lawyer community have started developing a feeling that they are making unmerited money without any quid pro quo. Absent job satisfaction. The end result. All are absolutely frustrated.

Is not the Hon’ble Chief Justice, therefore,right, it may be respectfully asked, if people think that courts are only for judges and lawyers and not for the common people?

Bharatiya Nagarika Suraksha Sanhita, 2023

Salient Features & Major Changes from Cr.P.C.

(By Saji Koduvath, Advocate, Kottayam)

Introduction

3 New Acts of 2023

•    Bharatiya Nyaya Sanhita, 2023,

•    Bharatiya Nagarika Suraksha Sanhita, 2023,

•    Bharatiya Sakshya Adhiniyam, 2023

BNSS – Major Changes from Cr.P.C.

CHAPTER I: PRELIMINARY

CHAPTER II: CONSTITUTION OF CRIMINAL COURTS AND OFFICES (S.6 – 20)

CHAPTER III: POWER OF COURTS (Ss. 21 to 29)

CHAPTER V: ARREST OF PERSONS (S. 35 – 62)

CHAPTER VI: PROCESSES TO COMPEL APPEARANCE  (S.63 – 93)

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS  (S. 94 -110)

CHAPTER X: ORDER FOR MAINTENANCE OF WIFES, CHILDREN AND PARENTS (S.144 – 147)

CHAPTER XII: PREVENTIVE ACTION OF POLICE (S.168 -172)

CHAPTER XIII: INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE (S.173 – 196)

CHAPTER XIV: JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

CHAPTER XIX – TRIAL BEFORE A COURT OF SESSION (S.248 – 260)

CHAPTER XXII – SUMMARY TRIALS (S. 283 – 288)

CHAPTER XXIII: PLEA BARGAINING (S. 289 – 300)

CHAPTER XXV: EVIDENCE IN INQUIRIES AND TRIALS (S. 307 – 336)

CHAPTER XXVI: GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS (S. 337 to 366)

CHAPTER XXIX: THE JUDGMENT (S.392 – 406)

CHAPTER XXXIX: MISCELLANEOUS (S.520 – 531)

Epitome

Major changes include –

• 1. Use of technology and electronic mode

      •  in Trials

      •  in Search and Seizure

      •  in Recording certain FIRs.

• 2. Mandates collection of forensic evidence in investigation (after effecting Notification thereof within 5 years) – for offences punishable for seven years or more.

• 3. Deadlines –

      •  Judgment within 30 days of the arguments (extendable up to 60 days);

       •  Information to the victim as to the progress of the investigation within 90 days, and

     •  Framing of charges by a sessions court within 60 days of the first hearing on                        such charges.

• 4. Trial, even in absence of a proclaimed offender.

• 5. Introduced:

•  ‘Preliminary inquiry’ before filing FIR (for offences punishable for 3 years or more but less than 7 years).

•  Concept of Zero FIR (“irrespective of the area”) and e-FIR.

•  6. Further investigation -

•  permission of magistrate is not needed after a (final) report has been forwarded.

•  But, for further investigation “during the trial” permission of the Court is needed.

•  7. “Evidence” of public servants can “be secured” through the successor officer.

•  8. Collection of Samples (including finger impressions and voice), without arrest.

•  9. Power of police to detain or remove any person.

•  10. State Government shall prepare Witness Protection Scheme

Conclusion

Doubts are seen raised, and questions are boosted –

•     Was a new enactment really required?

•     Wasn’t it proper to bring-in the changes by an amendment?

Whatever may be the answer, one thing is important –

•     Implementation of technology and electronic mode in Investigation and Trial (including that in Recording certain FIRs, Search and Seizure etc.) is ‘in tune with the times’.

Registration of A Composite Mark : Rights and Limitations

(By Febin James, Advocate, High Court of Kerala)
e-mail : febin.james@gmail.com       Mob.: 9446764699

A registered trademark grants the exclusive right to use the trademark against others, but this right is subject to specific conditions. In the case of composite trademarks, which contain several elements, the authority to take action against an infringer is limited to instances where a mark as a whole is misused. This principle is reflected in the judgments of various courts, which have clarified the extent and limitations of trademark rights, especially concerning composite marks.

Concept of Composite Marks

The Composite marks are trademarks that consist of multiple elements, including words, designs, logos, or a combination of these. These elements can be distinctive or non-distinctive. The distinctiveness of a composite mark is often derived from the combination of its elements rather than from any single component. As such, the protection afforded to a composite mark is generally limited to the mark as a whole, and not to its individual parts unless those parts are separately registered and distinctive in their own right.

Elements of a Composite Mark

1. Distinctive Elements: These are parts of the mark that are inherently distinctive or have acquired distinctiveness through use. They play a crucial role in identifying the source of goods or services.

2. Non-distinctive Elements: These are common or descriptive parts that do not independently qualify for trademark protection. They often include generic terms, common symbols, or descriptive words.

Protection of Composite Marks

The first incidence of the registration of a composite mark is that it grants exclusive rights to use the mark as a whole. This means that the proprietor cannot claim exclusive rights over individual elements of the mark. To obtain broader protection, the proprietor must register each element separately. The Second aspect of registration of a composite mark is where the mark containing distinctive elements and non-distinctive elements,  the registration do not confer any right over the non-distinctive elements. The Section 17 of The Trademark Act, 1999 deals with the effect of registration of parts of a mark. It states:

“17. Effect of registration of parts of a mark.—

(1)When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole.

(2)Notwithstanding anything contained in sub-section (1), when a trade mark—

(a)  contains any part—

(i)   which is not the subject of a separate application by the proprietor for registration as a trade mark; or

(ii)  which is not separately registered by the proprietor as a trade mark; or

(b)contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered.”

The purpose of this Section is to ensure that the proprietor of a composite mark does not claim exclusive rights over non-distinctive parts of the mark, which may be common to the trade. The Clause (1) of the Section 17 deals with a mark containing several Parts and the provision clearly states that the registration shall only confer on the proprietor exclusive right to the use of the trade mark taken as a whole. Whereas as clause (2) not merely deal with a composite mark comprising of several parts, but a composite mark containing distinctive elements as well as non-distinctive elements. From the plain reading, it is clear that no right will be conferred over the non-distinctive elements, but the question is whether any right is conferred over distinctive elements in a composite mark.  Nowhere in the Section 17, it is stated that the distinctive part in the composite mark will be independently protected.

Rights and Limitations, The Decisional Law

The Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd.₁

In this case, the Supreme Court emphasized the importance of disclaimers in trademark registrations. The respondent had registered the trademark “Shree” without a disclaimer, which led to confusion as “Shree” is a common auspicious symbol in Hindu culture. The Supreme Court upheld the Registrar’s decision to insert a disclaimer, stating that the purpose of a disclaimer is to define the proprietor’s rights under the registration and to minimize the possibility of extravagant and unauthorized claims. The court ruled that the registration of a distinctive label as a whole does not confer exclusive rights to any particular word or name contained within the label. Therefore, the proprietor of the trademark “Shree” could not claim exclusive rights over the word itself.

Amritdhara Pharmacy v. Satya Deo Gupta₂

The Supreme Court held that a trademark must be judged by the overall impression created by the mark as a whole. The court emphasized that the composite mark should be viewed in its entirety and not dissected into individual elements.

Parle Products Pvt. Ltd. v. J.P. & Co. Mysore₃

The Supreme Court reiterated that the correct approach for comparing two composite marks is to consider the overall impression and to look at the essential features of the marks. The court ruled that even if the marks are not identical, if they have a similar overall impression, it could lead to confusion.

Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.₄

In this landmark case, the Supreme Court laid down several principles for determining the likelihood of confusion between trademarks, including composite marks. The court stressed the importance of considering factors such as the nature of the goods, the class of purchasers, the mode of purchase, and the overall similarity in the essential features of the marks.

M/s. Kirorimal Kashiram Marketing v. M/s. Shree Sita Chawal Udyog Mill₅

The Delhi High Court held that the composite mark must be taken as a whole and that the comparison should not be restricted to one component of the mark. The court also stated that phonetic similarity and visual similarity are important aspects to be considered in such cases.

ITC Limited v. Philip Morris Products₆

The Delhi High Court emphasized that while comparing composite trademarks, the court must consider the dominant features of the trademarks. The overall structural and phonetic similarity, as well as the idea conveyed by the marks, are crucial in determining the likelihood of confusion.

Tata Sons Ltd. v. Manoj Dodia & Ors.₇

The Delhi High Court held that for composite marks, the dominant feature plays a significant role in the determination of deceptive similarity. The court ruled that if the dominant feature of the two marks is similar, it is likely to cause confusion among the public.

Nandhini Deluxe v. Karnataka Co-operative Milk Producers Federation Ltd.₈

The Supreme Court highlighted the importance of the overall impression of composite marks, ruling that individual components should not be given undue importance. The decision emphasized the need to consider the distinctiveness and the primary impression created by the marks.

Bhole Baba Milk Food Industries v. Parul Food Specialties₉

This case involved the use of the word “Krishna” in trademarks for milk products. The Delhi High Court held that the name of the deity cannot be monopolized as it is in the public domain. The court ruled that the registration obtained by the appellant was for the distinctive form of the word “Krishna” as used in their label, and not for the word itself. The distinctiveness is limited to the registered form of the mark, and thus, the registration does not provide an exclusive statutory right to the word “Krishna”.

Super Cassettes Industries Ltd. v. Union of India & Ors.₁₀

In this case, the court dealt with the trademark “T-Series” and the opposition by TELCO over the use of the letter “T”. The court held that the marks of the two companies were structurally, stylistically, and substantially different, and there was no likelihood of confusion. The judgment highlighted that a composite mark must be compared in its entirety and that individual components cannot be monopolized unless they are distinctly registered as separate trademarks. This decision reinforces the principle that the rights conferred by the registration of a composite mark are limited to the mark as a whole.

Harjeet Kaur v. Deputy Registrar of Trade Marks₁₁

The court in this case addressed the issue of similarity between the marks “TANU” and “T.T. Industries.” It was held that composite marks should be compared as a whole and not dissected into parts. The court emphasized that a composite trademark cannot be separated into its prefix and suffix to determine similarity. The distinctiveness and overall impression of the mark should be the basis of comparison. This case underscores the importance of viewing composite trademarks in their entirety rather than focusing on individual elements.

Conclusion

The registration of a composite mark does not confer exclusive rights to its individual or non-distinctive parts. The rights provided under the Act are limited to the form in which the mark is registered. The Courts have consistently emphasized the importance of considering composite marks in their entirety and not dissecting them into individual elements. By understanding the principles and limitations of composite mark protection, businesses can better navigate the complexities of trademark registration and enforcement.

Foot Notes:

1. 1955 KLT OnLine 1063 (SC) = AIR 1955 SC 558.

2. 1962 KLT OnLine 1143 (SC) = AIR 1963 SC 449.

3.1972 KLT OnLine 1208 (SC) = AIR 1972 SC 1359.

4. 2001 (3) KLT SN 3 (C.No.4) SC = AIR 2001 SC 1952.

5.2010 (3) KLT OnLine 1134 (Del.) = 2010 (42) PTC 486 (Del.).

6. 2010 (1) KLT OnLine 1158 (Del.) = 2010 (42) PTC 572 (Del.).

7. 2011 (1) KLT OnLine 1242 (Del.).

8. 2018 (3) KLT OnLine 3038 (SC) = (2018) 9 SCC 183.

9. 2011 (4) KLT OnLine 1122 (Del.) = 2011 (48) PTC 235 (Del.).

10. 2010 (2) KLT OnLine 1128 (Del.) = 2010 SCC OnLine Del.1652.

11. 2005 (30) PTC 330 IPAB.

Speeding Up Civil Disposal : Insights from Yashpal Jain v. Sushila Devi  (2023 KLT OnLine 1884 (SC))

(By Anujus Pradeep, LLM Student, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur)

e-mail : anujuspradeep99@gmail.com               Mob.: 9526837201 

“Even after 41 years the parties to the lis are still groping in the dark and litigating as to who should be brought on record as legal representative of the sole plaintiff”- this is the preface of the Judgement made by Honourable Justice S.Ravindra Bhat and Aravind Kumar in the case of Yashpal Jain v. Sushila Devi (2024 (1) KLT SN 3 (C.No.2) SC = 2023 KLT Online 1884 (SC)), wherein the case highlighted the situation of long pending civil suit and emphasised the relevancy and role of certain provisions such as Order V Rule 2 (Execution of summons), Order VII Rule 1 (Time limit regarding filing of written statements), Order X (Recording of admission and denials) along with Section 89 (Dispute settlement), Order XI (Discovery and Inspection) and Order XII (Admissions) in speeding up the disposal of civil cases in time bound manner. So what are these provisions, can it become an oil to the machinery and speed up the disposal of suits in civil nature?

Efficient Service of Summons for Timely Case Disposal

Order V of C.P.C. provides for Issue and service of summons , wherein Rule 1(1) clearly points out the time for issue of summons by the plaintiff for the defendant and time limit of filing of written statement, where it provides that after the institution of plaint the summons must be issued to defendant in to appear and from the date of service of the summons within 30 days the defendant has to file written statement if any, the time limit for submitting the same can be extended up to 90 days from the date of service of the summons. The proper service of summons is an essential element for the timely disposal in every case and in 77th Law Commission Report (Law Commission Report No.77, 1.Para.4.2.(13) Long delays take place in getting service effected upon the defendants. To obviate this delay, summons to the defendant should be issued both in the ordinary way for service through the process server and by registered cover acknowledgement due) it has been observed that “long delays are taking place in the effective service of summons on defendants” and the report also indicate various measures to be adopted by court for the effective service of summons and in Yashpal Jain (supra) also the Supreme Court have pointed out the need of proper service of summons by the court within time and in compliance with Order V , the judgment also mandates that the Taluk and District Court should ensure the summons is served in a time bound manner and it must be monitored by Principal District Judges and forward the findings to the committee constituted by the High Court for taking proper actions, after post pandemic scenario apart from existing postal service method of serving of summons service through whatsapp also has been recognised by the Bombay High Court in SBI Cards and Payment Services v. Rohidas Jadhav (2018 (2) KLT OnLine 3182 (Bom.) = 2018 SCC Online Bom.1262) and the Delhi High Court in Tata Sons Ltd. v. John Doe (2021) as a mode of service of to speed up the service of summons and these new modes have significance and impact in this era in case management. Strict adherence to Order V provides benefit of timely disposal of case.

Timely Filing of Written Statements under Order VIII Rule 1

As per the law the “the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons” or the maximum time limit to enter into defence and file written statement is 90 days where the time frame was 30 days before 2002 C.P.C. amendment (The Code of Civil Procedure (Amendment) Act, 2002, 9. Amendment of Order VIII) and it was amended with an expected result that time limit will provide defendant sufficient time to file written statement without excuse. But many judgements have observed that this provision is not mandatory but directional in nature and the court has power to extend time limit. In Salem Bar Association case (2005 (4) KLT SN 32 (C.No.43) (SC)) the Apex Court held that the time for filing written statement shall not be extended frequently, in Atom Technologies Ltd. v. YA Chunawala and Co. (2018 (2) KLT OnLine 3125 (SC) = AIR OnLine 2018 SC 1266)., the court pointed out that the time extension must be only provided for only in exceptional cases. The legislative intent in 2002 C.P.C. amendment (The Code of Civil Procedure (Amendment) Act, 2002, 9. Amendment of Order VIII) was clear that emphasised 90 days shall be to complied strictly with, but the language used is “shall” that is in many cases court has observed the provision is not mandatory in nature but only in form of direction and court will be having discretion to extend time limit, and finally in Yashpal Jain (supra) the Apex Court have made it clear that the time limit in Order VIII Rule 1 must be strictly to be complied with by the courts in order to ensure timely disposal and reduction of pendency of cases.

Facilitating Case Clarity and Efficiency through Order X

Order X confers power to court, at the first hearing to ascertain parties whether the parties are admitting or denying any allegations or facts against them and if they do so the court will record it , where this provision under Rule 1 provide an opportunity to court to curb out the issues in case, where if the parties admit any then the court may not have to deal with those admitted matters and would save a considerable time of the court and enhance the speed of the case. Rule 2 also provide further scope to court to ascertain matters in controversy by calling up parties and putting question upon them and it is a mandatory provision the party is obliged to appear and this provision help the court to elucidate real issue in controversy and vital matter in the suit so as to get more clarity relating to the suit, in A.Shanmugham v. Ariya Kshariya Raja Kala Vamsathu Madalaya (2012 (2) KLT SN 130 (C.No.126) SC = AIR 2012 SC 2010). the court has observed oral examination of parties by court enable court to narrow down controversy in a suit, so these provision do will have an impact on settling up of litigation fastly where the provision narrows down the things that have to be researched by the court and sae that time as well as make the suit clear as crystal so as it enable court to pass orders or judgements in light of those findings, so as the reason why in Yashpal Jain (supra) the Apex Court warranted the trial court to use Order X effectively.

Promoting Alternative Dispute Resolution (ADR) under Order X Rule 1A and Section 89

This is one of the vital provision in the Code that provides for alternative dispute resolution mechanism in suits of civil in nature where Section 89 provides for settlement of disputes outside of court and the Section aims to solve disputes amicably and to reduce court burdens, where it integrates judicial and non-judicial resolution mechanisms and as per the provision the court can suggest settlements and refer the case to arbitration, conciliation, judicial settlement and mediation the provision that enacted after recommendation of Malimath Committee has a greater impact in speedy redressal of suits in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.(P) Ltd. (2007 (1) KLT 196) The court clarified arbitration awards and settlements have the same binding effects as court decrees. After Salem Bar Association case (2005 (4) KLT SN 32 (C.No.43) (SC), the Supreme Court mandated Mediation must be made compulsory and Mediation centres must be set up in district levels under the supervision of respective High Courts, as a result the mediation centres are available at every court where family and small scale disputes are settled amicably in a shorter span of time, but there exist a number of hurdles in efficiently operating this mechanism such as reluctance from bar associations, lack of motivation and awareness in parties to the suit, infrastructure limitations, lack of experts and training. So ADR must be made more viable and measures have to be taken for it such as creating awareness among parties, changing the mind-set of lawyers on ADR and the myth that ADR declines revenue and the Government has to facilitate resources to support the new changes. Order IA, IB and IC provides for procedure to be followed by parties and court relating to ADR and it mandates that court shall direct the parties to opt for mode of settlement outside the court and fix a date for it.

Efficient Discovery and Interrogatories under Order XI of C.P.C.

Section 30 of C.P.C. provides that as prescribed in Order XI enable the court in suo motu order the delivery and answering of interrogatories , discovery, inspection and production of documents or other articles that amounts to evidence and court can use this provision to narrow down the controversy and save expense and time of parties along with shortening of trial in cases where number of documents relied upon by the parties are large and it may take long time in proving the facts and documents , the court as per Order XI Rule 1 with the leave of the court the parties can ask the opposite one to deliver interrogatory and the same must be answered by party in affidavit within span of 10 days as provided under Rule 8 and if party omits to answer any the court can ask the other party to answer in affidavit or via viva voice examination. Order XI also allow parties to discover the documents which are or have been in possession of any party which is related to matter in question to the suit and the same can be asked to be produced by party by using Rule 14 if such document production don’t injure the party having such document or not relating to title or evidence to his own case and as per Rule 15 the parties can inspect the document , except production of document under Rule 14 other forms are mandatory and non-compliance with them will be having consequences as such. Order XI is not widely used in practice nor no instruction or guidance has been provided on relevancy of the order, in Kishorilal v. Ramlal (2014 (1) KLT OnLine 1103 (Bom.-Auran.) = AIR 2014 Bom.19). honourable court observed that “……..The interrogatories are for the purpose of seeking admissions on facts and also in respect of the documents which are disclosed or produced by the other side. By putting questions to the other party, these admissions are sought to destroy a case of the respondent. This helps a party to reduce length of cross-examination and to shape its case more precise and it enables the Court also to have correct grasp of the nature and scope of cross-examination of the parties………..” the discovery by interrogatory can streamline the information gathering and reduce the need for extensive cross examination in Union of India v. Ibrahim Uddin & Anr. (2012 (3) KLT SN 73 (C.No.79) SC = (2012) 8 SCC 148). the Supreme Court has observed. “Order XI CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue.”

Speedy Resolution through Admissions under Order XII of C.P.C.

C.P.C. does not define the expression Admission but as per Evidence Act admission is a statement made in the oral, documentary or electronic form suggesting an inference to a fact-in-issue or relevant fact and as per the Act admitted fact need not to be proved, in the case of Smt.Sudesh Madhok v. Paam Antibiotics Ltd. & Anr. (2010 (4) KLT OnLine 1036 (Del.) = 174 (2010) DLT 594). The court has observed that when the claim has been admitted by the parties the court will be having power under Rule 6 to enter a judgement and to pass decree based on it where the court further observed the intent of the Order XII is to obtain speedy judgement in case based on admissions. It is not mandatory to pass the judgements solely based on admissions, as per the provision under Rule 1,2 and 2A any party to the suit can issue a notice to the opposite party to admit documents and unless it is denied in a reasonable manner it is deemed to be admitted and court has its own discretion to call upon party to admit documents even no notice is given under above rule where it’s not mandatory to admit the same as per Rule 7 even affidavit of pleader or clerk is sufficient to admit document or facts. The intent of framers is clear from the above provision that Order XII aims at speedy disposal of suit and provides a mechanism that is admissions to add fuel to it, whereas court is also entrusted with power to bring out parties with admissions so as to avoid admitted facts while deciding rest of the matter in suit, this is an interesting provision where court is having power to draw up judgement without moving into further aspects of suit, even court can pass judgement in pleading where the party does not disclose any of material particulars or plea is vague and unsubstantiated Rajeev Tandon v. Rashmi Tandon (2019 (1) KLT OnLine 3407 (Del.) = 2019 SCC Online 7336), proper grasping of Order XII may equip parties and courts valuable technique in handling case, this can be also effectively used by legal professionals to curb minor issues and get attention of court into major issues. In Yashpal Jain (supra) Supreme Court advices the courts to use this provision effectively to reduce the delay of deciding suits.

Way forward

Honourable Justices S Ravindra Bhat and Aravind Kumar in Yashpal Jain (supra) accentuates the critical need for strict adherence to procedural provisions of C.P.C. to expedite resolution of cases based on the key provisions discussed above. The issue pertaining in the realm of civil case pendency is still a significant concern and affect the credibility of the system, the highlighted judgment emphasise the necessity for strict adherence to procedural provisions with the Civil Procedure Code to expel the delay in judicial process. The practicality of most of the above mentioned provision is still a question when coming into reality but the bar and bench coordination and effective monitoring mechanism along with proper training can bring out significant change in the mind-set of legal fraternity. As Warren E Burger said “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people. And three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value.”