 and mediation, et cetera, along with not only being a good orator and hammering the point not only in court, but besides the court. I would say he can create his own impact with his own style of speaking. Therefore, after the emergence of these commercial suits and the civil suits, these are the issues which keep on arising in the minds of anyone. Therefore, we thought and requested to a person who knows the inside out of all these aspects. Therefore, we decided to take the session on substantive and procedural law. Commercial suits was always the civil suit. Mr. Amarijit Singh Chandyok, as I earlier said, a senior advocate requires no introduction as such. He has been the president of the Delhi Bar Association, former additional Solicitor General, President-Elect Bar Association of India, and President in Seoul, India, and President Madhyam. And when we say of Madhyam, Madhyam may be a different perspective, but I remember that when we went to, way back in Dubai and Mauritius, and way back the year 2019, I never knew that that interaction with him would become the Madhyam for all these relationships which could cultivate as they say, just like what they say in the Chinese, they say that the bamboo trees grow up, maybe for good five, 10 years they don't grow, but then they keep on growing. And similarly, the relationship has grown, maybe for five, 10 years, it was just simmering within, but eventually it has translated for the knowledge sharing, and it's always a pleasure connecting with Mr. Chandyok in respect of subjects of law, and even otherwise, without taking much time being a weekend. I will say to Mr. Chandyok to take things forward. Audio, sir. Thank you, Vikas ji. Let me first of all thank you for giving me this opportunity to be amongst my family, my fraternity, and whatever you have spoken to me, the credit entirely posed to the fraternity doesn't go to me at all. It is their love, your affection, your looking at things and holding my hand and taking me like a child to the path that it has brought, what has brought today. Thank you once again for giving me this opportunity. In fact, I was looking at what Vikas has bestowed on me today to say the distinction between ordinary civil suit and a commercial suit, both substantive and procedural. It brought to me my childhood as a entry into the law profession when one saw that you don't need the statutory back of any statute, anything to file a suit. Section nine of the court of civil procedure entitled you to file a suit for any wrong which in your view was a grievance or you were aggrieved of. We continue with this situation though under the Punjab Courts Act, you will find a position of a commercial judge already incorporated into it. But we saw a change for the first time brought in by the Commercial Courts Act of 2016 which 15 which said they described what is a commercial dispute. And to me, it takes almost every transaction into its fold, starting from a transaction of merchants, bankers, financers, going up to carriage of goods act, import exports, franchisee agreements, agreement relating to immoral property but it's said only used for trade and business. So the residential properties are do not form part of the commercial dispute, distribution of licensing agreements, management and consultancy agreements, joint venture, shareholders' agreement which otherwise were governed by the Companies Act even today, subscription and investment, mercantile agency, what almost everything including insurance and contracts of agency came to be known what we call in terms of the definitions of the Commercial Courts Act 2015 as commercial disputes. So we made a departure from the ordinary civil court to what we called a commercial court and we've now brought in into a concept of a commercial division and a commercial appellate division. So the honorable judges who are otherwise called trial courts or sub judges or additional district judges or civil courts got a new nomenclature under the Act which said you are now the commercial division as an honorable single court or the appeal court as an appellate court. Then it made the change with respect to the very filing of the action under the Commercial Courts Act. It while we all know that if I have to file a suit with respect to an injunction if plaintiff is entitled to bring his own valuation unless of course on the face of its arbitrary where the court can look into it. We also saw when there was a negligible instrument we used to value our suit accordingly. That was soon for possession. We used to value it in terms of your landlord tenant then the valuation is provided in different yardstick. But when we brought Commercial Courts Act it set of a specified value. So the act in fact brings within it a valuation distinct from what we saw in ordinary civil disputes. It has to be valued properly. And in terms of section 21 of the Commercial Courts Act this law overrides any other law for the time being enforced. Therefore if there's a conflict for example between the law in relation to sale of goods act the Commercial Courts Act would apply not really the sale of goods act. Though many a times the question is a reason that whether the property in the goods will pass in terms of the sale of goods act or would it pass in terms of the Commercial Courts Act? The answer is that the first act still governs because there's no provision under the Commercial Courts Act as to how the property will get transferred in goods. Therefore while it is substantive law of sale of goods act remain sales of goods act while transfer of property act remains the primary act in which it's done. But if it comes to a immoral property relating to commercial user then it says Commercial Courts Act will govern the sale. The reason is twofold. First reason is unlike CPC which we found many times have been commented upon that has been a source though it was brought in in 1908. We have brought some amendments to it but we have not sufficiently discharged with duty in terms of what CPC is laid and most of the time the Supreme Court said just this procedure is handmade of justice we can mold it in any manner we want. But the Commercial Courts Act brought for the first time a concept that the timelines are fixed today. The case management is fixed under the Commercial Courts Act. Therefore how you will deal with a commercial court or a commercial dispute which falls within section two of the Commercial Courts Act is a substantive change even while filing a complaint to give you an example. While section 26 of the court of sale procedure provides that we can file a suit provided with an affidavit verifying the contents of the complaint that verification affidavit also came by an amendment to CPC. But we've got another amendment by 2015 amendment which said you will have to now file an affidavit apart from the first affidavit of a statement of truth in terms of what it obtained. A, which will show what statements made by you in the suit in the complaint are truthful. You have not suppressed something. Therefore a statutory format came to be provided. Therefore 26 itself made it mandatory in terms of the substantive law that I can't institute a commercial suit in a commercial division. If I do not comply with both affidavits. So the first departure was made with respect to not procedure but with respect to raising a commercial dispute. A question may well be asked by me, by to my own self that do I have an option after 2015 act? The answer is no, I can't. If it is a commercial dispute within the meaning of section two then that suit will have to be a commercial suit in terms of the commercial quotes act. That with, as I said, transfer of property act, sale of goods act, shipping merchandise act all those things will come in maybe under the contract act even with respect to the agreement that we have under the company's act when it comes to shareholders but the format and the evaluation will have to be done this. We made another departure in 2000 amendment to the commercial quotes act where we introduced section 12, capital A unlike a suit which I can immediately file in a case with respect to commercial quotes act section 12 A is brought in which says I must have a pre litigation mediation. Therefore I can't institute a suit with respect to a case which falls within the meaning of the commercial quotes act unless I have exhausted the remedy of a pre litigation. A question may well be asked that if supposing I'm seeking urgent relief and I need to look at that there of course the law made an exception that you may move the court but now earlier as I saw we lawyers were just filing applications to saying I'm seeking an interim relief my lord may entertain the suit which we made a departure route if you want to even create a seek urgent relief you must take leave of the court in terms of section 12 A exempting the plaintiff from moving the court but 12 A does not bar the court to once again send the parties back to mediation if it's so desires and if the parties feel that it can resolve. Therefore first substantive change is while all other civil suits I don't need to take leave of the court I don't need to go to pre litigation mediation in his commercial suit I must comply with 12 A unless as I said an exception is made that you are seeking any substantive interim order to protect the subject matter of the suit and as now Delhi takes the view that you will have to take an exemption from the court if you are not wanting to comply with section 12 A because the word used in 12 A till you exhaust this position you can't knock the door of the court. The purpose is very laudable because we are seeing every day that the briefs in the court dockets are going up we are not able to meet the demands of the dispute and conflicts conflicts is inherent in every where whether in your commercial world especially and because time is very very important and there's a value for time in one way and you must not spend judicial time on civil litigation so and also give parties an opportunity to meet and resolve itself by the process of mediation which is a structured process now in fact the bill has on mediation has already been presented to the parliament it has gone to the joint parliament committee and we hope that probably in the next few next coming sessions of the parliament probably will have the mediation law in place but having said that for the purpose of today I can only say 12 A is a substantive change in law from a normal civil suit and that's the first major change that we brought forward we also brought about as I said a change in the valuation therefore you have to be able to specify value in terms of my suit will have to be done that this third part is equally important is that I have now to state everything in precise form unfortunately the experience now today shows that what we have started looking at in planes and in the reputations also that we say in Mahesh versus Galaxy A31 or so the Supreme Court said this or Punjab Rihanna I Court said this or Delhi I Court said this and we start quoting the judgements that is no pleadings even if I was to take a distinction between a plane in a commercial suit and a plane in an ordinary civil suit and even in reputations my request is that we all must consider that we stop quoting law especially the judgements of the Supreme Court because the first principle of the interpretation of any judgment is that you are looking at that judgment in the context in which it is delivered not in the out of the context it may not apply to your facts at all we start reading one sentence and we quote that sentence at that point so therefore the first request is that whether it's a civil court or a commercial court specialty I don't need to look at what the law of the land is I need to plead all facts therefore in terms of order four now the second departure comes in that my complaint in a commercial suit must comply with order six and order seven and those two then only plane travels into a suit in terms of order five the court of civil procedure by this amendment of 2015 2000 commercial courts act has amended the CPC also and therefore new provisions on procedure will I come to little later with respect to the same so the question for your consideration would be when a matter comes before you to check up whether that dispute falls within section two of the commercial courts act then you'll have to invoke the jurisdiction of the commercial court or the commercial division as we call it and then also ensure that the amended provision of CPC which are now amended by virtue of the commercial courts act is adhered to the while the statutory provision under which the transaction is governed may remain the same but everything else how you can invoke the jurisdiction what is that you have to comply with the condition precedent as I said section per week will have to be complied by us unlike a civil suit the third part is that the documents if not filed along with the plane will not be allowed to be taken in fact it's easier for me to say that the commercial courts act equally applies to an arbitration proceedings by virtue of the provision of the commercial courts act so it's not a case that arbitration and consideration act 1996 governs it but now after coming into force of 2015 act the arbitration is also governed by the commercial courts act so both acts have to go side by side in order to for a person to invoke whether it wants to invoke section nine so whereas courts jurisdiction is concerned wants to invoke section 11 for the appointment of arbitrator or even wants to invoke the jurisdiction with respect to asking force assistance with respect to anything that we are looking at with respect to witnesses etc consequently wherever the jurisdiction of the court is involved the commercial courts act will have to be read along with the arbitration and consideration act a question has arisen and I must bring it home in that submission before you that in section eight of the arbitration and consideration act the amendment post amendment says that is wherever a suit is filed in fact the word uses wider wherever an action is brought which is the subject matter of an arbitration agreement then the defendant is entitled to file an application under section eight to request the learned judge to pass an order referring the parties to arbitration so two distinctions have been brought in now and that distinction is disputes are of no relevancy it is the arbitration agreement which is relevant in terms of section eight and five of the arbitration act today it the arbitration agreement is there between the parties unless the court comes to the conclusion and here again a distinction has been brought about by the law that court becomes a judicial authority and that judicial authority then exercises jurisdiction not with respect to either under the commercial courts act or under the transfer of property act or of sale of goods act it actually exercises jurisdiction under the arbitration and consideration act 1996 and therefore the jurisdiction gets respected by section five but if there is a cross-border dispute through the agreement with respect to New York Convention brings in section 45 of the arbitration and consideration act but the jurisdiction of that very judicial authority gets extended while in section eight it has only to look at where the arbitration agreement is prime of the site valid or not in section 45 it looks at something totally different apart from validity of the agreement it also looked at it whether it's operative whether it's null and void and also looks at it whether there is a subsequent event which entitles or to defendant to urge that it has been abandoned so these are distinctions in commercial situations when I travelled from domestic law to the international law in respect to arbitration but the commercial courts act makes this distinction because the dispute is commercial most of the arbitrations if I go back arbitrations never used to be with respect to specific performance of an agreement itself for example but the law got underwent a change today the specific relief act has been amended to therefore the arbitral tribunal will be within its jurisdiction read with the commercial courts act to exercise jurisdiction with respect to a commercial dispute even for arbitration earlier people the argument raised in the court was that a specific relief act uses the expression court and court can't be an arbitral tribunal there's a distinction in law but that distinction by the courts have not been wiped off totally to say an arbitral tribunal can rule in granted degree of specific performance a question well may arise in relation to a commercial dispute if there will be a commercial dispute in substantive provisions of commercial courts act and the person invokes for example section 7 or 8 or 9 of the insolvency act there also the court has looked into to say that since it's a contractual dispute commercial in nature not really a case of CIRP or what we call it restructuring which is the condition now first after the insolvency law of 2016 has been brought in to say that parties will go to whatever forum they have chosen namely the arbitration or they go and see elsewhere a commercial suit within the commercial division so the question has to be judged when we get a brief to see is it a commercial dispute is there an arbitration agreement and if they are both consistent then we must invoke the same in terms they're all so the all these enactments have been further in terms amended by the commercial courts act and new dimensions have been given and the purpose is 2-4 A a commercial dispute must be resolved at its earliest whether by adjudication or as I said in terms of section 12A by a mediation process B the new change that has brought in the substantive laws that even if I as a plaintiff may succeed in the suit but if I find the court finds ultimately that something has gone wrong in my end and I was not looking at the proposal that the defendant had given me then the cost of the defendant may not be standing in the decrees passed in my favor in terms of amended section 35 of the commercial courts act will still be won by the plaintiff of the defendant so these are new changes of substantive law which has come in new jurisdictions have been conferred on the court to look at it how we do it to give you another example we never had a system where we looked at case management now case management is provided now by the commercial courts act and after the pleadings are complete the matter goes normally we all know in normal civil suit we say matter is listed before the court for framing of issues but that situation has now undergone a change in terms of commercial disputes by a substantive provision under the commercial courts act which says that you shall have a case management hearing where the honorable judge after hearing the parties would look at the say as to what issues come in where should be the statement to be filed what all should be done and a case management hearing takes place to see if timelines are framed so that those timelines can be abided and gone into it is important for me to mention today because of the pandemic we saw the Supreme Court has time and again said that time from March 2020 will be initially state they said will be extended then the Supreme Court realized its own mistake and said no no no the extension has to be within the meaning of law law doesn't provide that extension so they have now the subsequent orders if you see of the honorable Supreme Court says these periods of pandemic shall be excluded for the purpose of determining limitation so that period in terms of the interpretation of section 1400 limitation act stands get extended now stand gets excluded not extended as I said earlier but the question today remains is that the Supreme Court itself saw that notwithstanding those general orders and I need to press it very formally before all of you please look at whether it was order 8 rule 1 earlier or whether it's order 8 rule 1 post the amendment that have been brought in by commercial courts act order 8 rule 1 said a defendant will file written statement within 30 days of the date of service the commercial courts act said you will file it in 30 days but then ousted the jurisdiction of the court to even extend time or extend time after 120 days so the question may well arise that whether if the defendant had not had any consequences any ill effects of the poet and was regularly precipitating the dispute or was precipitating the proceedings in the courts then would he be entitled to this general order passed by the responsible Supreme Court saying this time it would be excluded is a question pending determination today before the high courts and I'm sure one day we'll get clarity on this because my personal view would be that the defendant is not able to show or for that matter even the plaintiff is not able to show that I could not file my suit within time because of some COVID exigencies that have happened in the plaintiff's own life the court will have no jurisdiction to my mind to exclude that period even for the purpose of determining the limitation even for the respect to filing our written statement with especially in relation to commercial suits that have passed to the statute has not been amended that time has to be excluded only from facts of each case whether a particular case I have made out a case for exclusion of time or not is a question of fact in the facts and circumstances of each case coming back to the situation that if there is a franchisee agreement and the agreement is determinable by flux of time or by termination and if that termination has taken place can you determine that we used to file normally a suit for injunction restraining the defendant to do so but now we will have to look at it from a different point of view both with respect to commercial courts act and with respect to the effect as to when can the court grant that injunction in respect of an agreement which is determinable there is no change so when a substantive law is concerned to my mind an agreement which can be terminated but is determinable by its very nature can't be a subject matter of specific performance therefore we need to look at these aspects of the matter before we proceed further the statement of truth which is now provided under the commercial courts act is extremely important earlier our experience shows that many times we never used to produce documents especially those document we were going against the plaintiff and the defendant as the case may the departure law made is that you will disclose that document also even if the document goes against you therefore there is a departure in a substantive law procedure law as such procedure is that I have to file an affidavit but the disclosure of that document becomes important and for a defendant and for the plaintiff both a stringent amendment has been brought in that I can't speaking what we used to do signatures admitted contents denied in a document today the law under the commercial courts act puts an obligation on the plaintiff and the defendant not only to say that the document is admitted or denied if you are denying a document you will have to give reasons for the same you will have to deal with the contents of the same in getting from the denial of documents in the case management the court would probably ask both parties to file their affidavit by their members of course not has been said and I think at the debate is rightly being held that we need to look at days when we go back to trials in the open courts this local commissioner trials for our youngsters specially we must abandon them because if you see the experience that we used to have a trial would begin in the high court in Delhi high court for example we would end up with the judgment in the court should be no adjournment except of course an accident like that or something like that therefore we need to bring back that because there is no trial even in criminal trial I find there is hardly any trial today trial lawyers are going through we need to exercise that power we need to exercise teach our youngsters what are the means of trial why the trial is necessary and for a judge to appreciate it the judge says I have seen the demeanor of the witness the cross examination cheaters in my presence consequently I find no reason why I should not look at it therefore time has come that we must it actually started misusing we start filing an affidavit now see this departure that the court made with respect to substantive law normally speaking if I remember my experience as the president of the bar just the pradeep Nandu Jo and retired as a Chief Justice Rajasthan we all know his law chief was sitting on the visual side I was sent for to say please call him and he gave a file to me in the court and say can you please read this affidavit by way of evidence with all humility at my command the author of the affidavit had done nothing but copied the plaint again by cartel paste including the cause of action including the prayer so I said this is no evidence so the departure that the commercial courts act now says each fact you will have to deal with it you will have to provide for it the verification is different than what is normally suited there normally speaking a verification has been said to be a curable defect I am not saying even in the commercial courts act it is not possible to cure the defect but the stringent measures have come in so that if false and vitatious litigation stopped and to use the words of just Krishna nipped in the bird before it takes the judicial time of the court because time of the courts is important keeping in view the documents that we are having today in the courts therefore we need to look at it and affidavit must prove and today I found in fact this afternoon affidavit was read by me which affidavit only said I am the plaintiff I am the power of attorney holder of Mr. So-and-so and he said power of attorney is exhibit P1 nobody has proved that document so the law in terms of the amendment especially in relation to commercial disputes tells us, compels us obligates us that we will have to prove each document and proof of document is not distinct from a civil suit and a commercial suit of course we must also look at it from the point of view that if the court finds at the time when it is doing case management that you have no issues really substantive the parties are not adversarial on each other then apart from using as I said the power of its mediation even post section 12A it is entitled to pass a decree maybe on some issues or on punishment because if the court finds that actually speaking no issues are factorized which relate to according to evidence because normally the rule is access to justice we all feel means that you must hear us with parties then you must hear us on arguments then you must also do something with respect to trial so unless trial takes place there is no opportunity really speaking given but the statute is implemented which now puts an obligation of the honorable judge that without even evidence if in the case management itself it finds that it needs to decree the suit of the plaintiff or dismiss the suit of the plaintiff it shall proceed to go ahead with the same let me give you a very small example of the fact a commercial immobile property along with some of the properties that the parties had were owned by two brothers a brother filed a suit in terms of now the commercial force act claiming partition of those immobile properties and by virtue of the fact that immobile property to be used for trade and business in terms of the section 2 sub clause 8 would be a commercial dispute obviously filed a commercial suit the defendant came up and said the suit cannot be maintained because we had by an oral partition between us distributed these commercial properties and I am in possession of ABC in terms of that oral settlement and he is in possession of the other on be confronted by the honorable judge as to what he has to say the plaintiff withdrew the suit thinking that probably it will work but after few months we saw the plaintiff filing a suit once again to say that probably the defendant had made a statement but that statement was not correct the court now at the stage of case management looked at it and on the principle of order 23 rule 1 dismissed that suit saying that you having not taken leave from me in the first suit and I must bring to my all my friends notice this would equally apply to a civil suit whether it is commercial or it is not commercial because if I take if I withdraw a suit I would not be entitled to bring in the suit unless I have brought a leave of the court and an interesting question which I thought I may bring to your notices has come in now and being pending now consideration of the court and this is this in Delhi as we all know in the hour also for weight is not compensated therefore a suit was filed with respect to the state of a deceased the suit was dismissed the matters didn't appeal in the meanwhile the other side now comes up and files this suit substantive in nature based on a bill of the deceased the question that has risen is if bill was not treated in the first suit can you now bring will into it that's a matter of pending consideration I do not wish to comment on it but these are questions that are risen and now with the situation as we find in the commercial courts and in substantive law unlike the rent control act where we have a lot of litigation because the tenant is protected because most rent controls are protecting the old tenants but the new tenants is coming in with the so many litigation coming with respect to that tenant in relation to commercial disputes we will find that the commercial courts act governance and the court will be entitled at the time of case management to pass a degree if the defendant has no defense or nothing normally we used to say the tenancy was extended no tenancy can be created without a written document in terms of section 107 of the transfer of the act and if there's not a document which is no extension can even be there there's a misnomer in my humble view that 11 months lease does not require registration to me it says a document of lease must be in writing and the moment it is in writing it requires registration and stamp both so one will have to look at all these aspects probably with the new change of law, new change of substantive provisions all this would have to be looked at by us to see how do we bring these changes into it but we must note at the same time that the changes have been brought in substantive and procedure for example I don't think in most of these seven proceedings we have ever utilized discovery of documents but in the commercial courts act specifically provides and empowers the court to call a party to make a statement in terms of what attending to and the conflict that is coming in today is earlier a derivative action for example if I'm a minority shareholder less than 10% of the value of the shares I was not entitled to go to company court in terms of the erstwhile 1956 act but 241 of the new act the new provision of the company's act now empowers the NCLT to exempt it from filing to exempt it even if the shareholding is less even the numerical numbers may work so we will have to judge the new provisions of the commercial courts a new provision of substantive provisions of law in relation to any action that we propose today because if the action is not in terms thereof we will not be entitled to maintain an action with respect to the same the question that most of us find it difficult is our admission denial of documents and trial which to my mind if you just look at the new provisions of the amendment of the substantive law in relation to commercial courts act you will find that in the case management the court passes an order which if the admission denial is not in terms thereof the court will reject it if the verification of your written statement and your plaint is not in terms strictly in terms of that we find most of the time what we have to do with the application verified this day at Chandigarh that the contents of the affidavit are true to my knowledge and believe in fact I remember 1968 Punjab itself said that such affidavits have no legal sentiment and after coming into forth the substantive provision of the commercial courts act such affidavits in any case do not comply with law what portion of the plane because ultimately it is the responsibility being cast on the plaintive or the defendant whosoever it is because both the plaintive and defendant have to file a statement of truth and that statement of truth is to be judged in relation to every paragraph of the plaint and the fact and if there is something to be disclosed on basis of information then I must say on verification whose information am I saying so this brings to me another aspect that I thought within the time frame that I have I must touch it while under the ordinary civil suit normally we say it is denied that the name of Mr. Amarjee Singh Chandigarh is the son of Mr. Late the defendant even says it is wrong and denied the law has been amended now in terms of its procedural aspect to say that if the defendant in a commercial suits wants to deny this he will give me reasons for it so in this case what reason can you probably give unless you know that the name has been actually I am not actually adopted by somebody or that I was not born from the wedlock of my father late Mr. Sujan Singh then it is different matter therefore I must give reasons so the procedural law is amended to say a defendant will not only merely say or the paragraph one of the plaint is wrong and denied it must give reasons for it to deny it it must specify what is according to business therefore there is a departure being made in the procedure even with respect to denial as I said even in relation to documents admission denial both plaintive and defendant will have to give reasons therefore even in the pleadings it will have to give reasons as to what is it saying what does it want to say and what is not to most of the time we just say it is wrong and denied and then we say so I see that almost every day the defendant says the plaintive has put the strict rules thereof and it reminds me of a honorable judge who was a very eminent lawyer when I was probably in 74-75 had a 100 lawyers law firm at main Kastur Raghun Di Mahab parliament street and he was the honorable judge and a question that came before his lordship was that what is that this denial that you are doing merely in terms of even order 8-5 as it exists in civil court or ordinary civil suit unlike a commercial court mere denial is not sufficient putting somebody to stick to fact amounts to admission and consequently the court will be within its jurisdiction to pass an order many people urge that in relation to for example when you assume a person for rendition of accounts in any commercial matter should be court not first pass a preliminary decree and then proceed to pass a final decree to my mind if the court finds that there is no plausible dispute being raised by the defendant to the claim of the plaintive or a counter-claimant by the defendant for the plaintive the court will be entitled to pass a final decree asking a plaintive or the defendant as the case may be to look at it and pass a final decree asking into rendition of accounts therefore a court always had jurisdiction to my mind unlike bringing this change to pass a final decree of course in the circumstance in the case but with giving the jurisdiction now in terms of what it would take it has to look like that an interesting question may now rise in changing of times for us that if the dispute relates to and this is in relation to testamentary literature I thought I must bring it home to my August gathering that if on the date when I am executing a will for example the state never belong to me and even on the date of my death if they were belong to me could I be a person who would exercise right under the Indian succession act to do so another question interesting question is pending consideration that if my wife or my daughter who has become co-partner with me in the Hindu and divided family is the right absolute and therefore will be governed by that the state would go back to the father because earlier if you remember by a survivorship we used to take that situation and say the share of the other co-partners was more and it doesn't go by succession but to my mind the law has undergone change today a women's right is absolute in the property and the co-part that succession situation even whether it's a male or female does not arise in fact the doctrine of relating back will apply so far as females are concerned because the statute today provides post amendment of 2005 that her right to property is absolute and it relates to the date of birth so this controversy fortunately has not been put to rest by the Supreme Court because earlier view was different it said if the father is not the father is dead on that day then the claim made by the daughter is of no consequence the Supreme Court said no the argument or the right emerges on the date of his the date when she is born it has nothing to do with the date of the death of the father now these are changes that we see over a period of time and these changes to my mind are extremely important when we are determining what we should invoke as Morris what should be the contents of our plant whether I am doing a civil suit or I am doing a commercial suit and we must look at the transactions because many times we find that commercial transactions are being overlooked by us when we are filing our plant we must look at the amended provisions of the photosphere procedure the specific relief act has been amended the transfer of property act has been looked at many of you who have done this landlord-tenant relationship we used to urge many times in court I think time and again this question used to arise that this notice is fine of termination of tenancy but does not terminate the tenancy in terms of the agreement and in terms of the agreement between the parties that my tenancy will terminate every monthly tenancy will come to an end say on 25th of March 2022 the amendment was brought into transfer of property act this defective notice will not entitle a defendant to challenge the notice all that is a step in the direction to see how do I curtail litigation how do I contain the conflict and that is why I think when Mr. Vikas drew your attention that we have looked at Madhyam in this way we are looking at Madhyam and we are looking at this conflict resolution only to ensure how do we bring more harmony between the people in fact I am very proud to tell you people we have been able to resolve commercial disputes disputes between the families by total Indian mediation style we are touching the feet of the elder to say if I could touch the younger stand up to say you can do it I can also do it and he touches the feet and the matter gets resolved so we have this our own traditions we have traditions of this bar we have traditions of our families and most of the businesses in this country more major businesses of this country till recently are all run by families whether through Birla's or Ambani's or for that matter Tata's everything is coming in the family so please ensure even as lawyers if you can restore the relationship between the parties attempt to do so because that is the duty that we need to look at law has been stored on us we are not lawyers only for the saying that we are advocates under the Advocates Act we are actually officers of the court we are officers of the court then it's abundant obligation cast on us to ensure if we can bring parties together to resolve the issue this helps us in many ways first the cost of the parties and I remember when old 2006 when we started this process of mediation many of my friends thought it could be my own self we thought probably it will be a setback to our practice but we found that does not it adds to your practice and I always feel that when God bestowed this order on me or you to come on this earth along with this passport of life that he gave me till what date I have to be like he also gave me the visa as to what am I going to make in the life so of course the changes definitely come my karam do make a difference I am not disputing that part that is why I think we still have to do our eyes but having said that to you I still feel we owe a duty to the society as office in the court to assist the court in bringing the parties back to their relationship whether it's commercial or non-commercial because today if you find if the statistics with me are correct I find at least 29% mitigation today in matrimonial courts alone is cross-border where children are being treated as chattels and we are not looking at the welfare of children therefore we as officers need to look at these situations to see how do we remove these conflicts in the society and we remove these conflicts in the society I can assure you law will do much more play a much better role in the lives of people than what we are playing today in fact two of youngsters who are in turns with my Chief Justice were actually IT experts and then went to law they are still in law school and they thought that before they went to law school they used to feel lawyers can't be trusted now that they came into it and they saw what lawyers play a role in harmonizing society how do they get access to justice how they are able to do it they are today looking forward to a day when they will become lawyers so my suggestion is that please consider the distinction of substantive law between commercial disputes and civil disputes between procedure adopted by the commercial courts act and the ordinary procedure of the porous procedure and let us all resolve that if we are not able to get the right path we should go to somebody else who can help us out to do so but let's not do commit mistakes with respect to the substantive or the procedural law and raise more conflicts in the courts they were already running quite high in our pockets let us do something to resolve them and that's only possible when efforts that are done by Mr. Vitara that we talk to each other we have a communication I think the communication is the best solution today we need to communicate each other whether we do it through communication or we do it personally we should resolve, iron out all our differences iron out all the doubts that we have with respect to this law so that we can take that forward I am only leaving myself 10-15 minutes subject to what Mr. Vitara has to say if anybody has to ask any questions from me I am here to answer how rightly you have put it across and hammered the point that the access to justice is very important to prevent the excess of justice to someone and how the madhyam and mediation have played a pivotal role in changing the mindsets and dynamics of law coupled with the fact that you have also shared your insights in a bird eye view with that one can always say that one will always learn in this short grasp it's a encyclopedia and where one can learn meanwhile I can take since you have taken everything in the right perspective there is one question from Advocate Satya Dev on YouTube it says when is the affidavit in chief to be filed in the commercial suit well that's what I said that in case management the honorable judge has a meeting in the meeting the honorable judge unlike you see in the civil suit plenty of first files in affidavit by view of evidence his evidence is recorded and then defendant comes under the commercial courts act the court is 99.9% going to say both parties will simultaneously file their affidavit by view of evidence so the stage comes when the court is looking at is whether there are issues if you frame some issues then it will allow both the parties to file their evidence but it will be only at the stage when it is putting that the timelines are granted at the case management hearing where the court says I now framed issues you may file your affidavit within four weeks or six weeks as the case may be depending upon what they have to do unlike a situation where something if that's why I said if I don't have a document in my power in possession I only have a copy and the original Mr. Vikas then I'll have to show to the court right there when I'm making that a vermin in my document saying this document is in the custody of Mr. Vikas therefore the court will be entitled to call Mr. Vikas to file the original if there's a dispute with the spectrum the contents are not in dispute then obviously you don't need the original and that's why the departure has to come we have started looking at documents shown and returned take for example a CD normally we say original document must be filed but a document of sale I may require in so many other phases so the court says you please show that document show the original to the other side unless there's a dispute as to the execution or the registration of document that's a different matter otherwise you should be able to do that now if there's an agreement between the parties which is franchise agreement an agreement between the parties is joint venture agreement the joint venture agreement even if there's a copy on record I'll be entitled to admit and then I'll say I can't say it's a photocopy I'm not going to do if a change has come in today we must look at that change look at positivity to see how do I the person is how to accelerate the disposal of these matters rather than delaying it on one technical ground this is by Asta Khanna thank you for this elaborate discussion but could you please throw some light on rule 8 sub C of order 15A what exactly does allow the suit mean does it mean the judgment forthwith or how about it yes please let me read with you that all orders should be ruled that can you it would be possible to share it on the screen brother sir I will ask Asta if it can be or I can just read that I think so that everybody understands what we are talking about sir meanwhile the question is can the civil suit be transferred once the civil suit is transferred to the commercial court should it go to a pre litigation mediation or what is the position in that case the question is this what is done that is not a case that the pre litigation really sticking a lot of us feel that after we have gone to the court and 12A as let's say we have met on 12A in a pre litigation mediation but we have not been successful does not bar the court section 89 of the civil suit court still in titles in fact if you see section 30 of the arbitration act the arbitrator must can take aid of mediator to see if we can resolve the issue so the jurisdiction of the court even if it's transferred from an ordinary court to a commercial court does not take away jurisdiction or the parties to say we will make an attempt to see if mediation can work there is no bar the court can do so please look at order 15 rule A let me start with that to give a summary to that the court shall hold the first case management hearing not later than 4 weeks from the date of filing of the epitaph of admission the live documents by all parties to the court so a timeline has been given right in the beginning of 15A orders we pass in the case management hearing and then A, B, C, D, E etc. gives us everything what will be done let me straight away go to section 8 that my learned friend has got sequences of non-compliance with orders if any party fails to comply with the order of the court passed in a case management hearing the court shall have the power to control such non-compliance so the first answer is to your question if I file for continuation and give some good reason the court is entitled to grant me grant me condemnation of delay so it's not a case maybe subject to cost which normally even happens in a civil suit for close non-compliant parties right to file epitaph conduct cross examination file written submissions address oral argument but depends upon what kind of default are you committing if I have been totally non-compliant of the orders of the court unless I have some sufficient cost to show to the honorable court that he'll be entitled to say the plaintiff's evidence on record or the defendant's file is that's why I said under the case management both parties will be entitled to the court will pass an order asking both of us to file supposing the defendant has filed it your right of cross examination will curtail it could be one of them not everything then dismiss the plaint or allow the suit where such non-compliance is willful repeated an imposition cost is not adequate therefore the mandate of the statute in terms of it sees that you have been given opportunity that's the fundamental principle of compliance with principles of natural justice apart from statutory provision and you have sufficient cost to say why you could not do so and there's a non-compliance is willful take the word from the contempt of courts act it also uses you are in contempt willful contempt of the court order so the same is willful not only willful there's a comma after that then there's word is repeated and imposition of cost is not adequate to ensure compliance so court finds that even if I were to burden the other side burden you with cost to compensate the other side it will not be insured compliance by you the court will be entitled to dismiss the suit and that's why I said section 35 has been amended now we are not withstanding that I have succeeded in my claim in my suit if I have found my conduct has been bad the court may impose the cost of the defendant on the plaintiff notwithstanding that I have succeeded in this suit so these are the changes that the statutory provisions have been brought about which is substantial in nature and not procedure jurisdiction is restricted in court to pass an order therefore it won't be a mechanical order passed by the court court has to look at it it's a non-compliance is willful A, B, it is repeated and if I was to even award cost I will not get the compliance thereof the court will be entitled to dismiss the suit or decree the suit I guess the last question Mr. Manoj asks can penalty of encroachment of setback of buildings fall under the commercial act commercial court act that's actually governed by encroachment is a different subject matter or if you are saying even if you have covered an area of this setback is governed by municipal laws whether it's a Punjab Municipal Act Delhi Municipal Corporation Act and DMC Act therefore that won't be a commercial in nature even if the property is user for only trade and business because that is the agreement in relation to a transfer of property therefore the question was agreed to transfer a commercial property meant only for trade and business that agreement falls within the meaning of section 2 the word used is totally different agreements relating to immoral property used exclusively in trade and commerce and I must add for all of you that there is an explanation it doesn't cease to be a commercial dispute supposing a dispute is with respect to a partnership firm it may be a commercial dispute and under that some property has to come to me on dissolution doesn't mean it ceases to be a commercial dispute it will still remain a commercial dispute however the point that you have raised will be strictly governed by the municipal laws where the travellers are constituted it's a totally different hierarchy it has nothing to do with civil suit unless you bring a civil suit to show there is a non-compliance of the statutory provisions of the commercial of the Municipal Corporation Act or the Punjab Municipal Act then only a civil suit lies we have taken the questions and how rightly you have said I reminded that nothing is permanent except the change and as they say that everything keeps on changing for the betterment thank you sir for sharing your insights and people will be deeply enriched thank you everyone stay safe and on Monday we will be having the session by Mr. Professor Venkateshwarya Haigley Chairman Center for Studies in Prophecy International Law and Economic Schools of International Studies from Jawaharlal Nehru University New Delhi along with Mr. Subramaniam from CMR University do stay connected with us on Monday thank you everyone stay safe, stay blessed thank you