Insurance, rent, loan to commercial disputes: How to prepare a defendable case to win legally

Updated: June 03, 2020 12:54 PM

Legal dispute: Every form of document is helpful in preparing or defending a case in the Courts. The things which are required for anyone are- the creation of the proper and relevant documents and to keep them at a proper place or with an authorised person.

how to win a case in courtHow to win a case in court: Know about documents you need to prepare a defendable case in court. Representational image

By Rajnish Kumar Jha

Many a times, while arguing for my clients in the Courts, I find that there are some missing lines in the client’s story or some other mistakes of similar nature (e.g. having improper or insufficient documents) committed by them. It often happens due to unawareness, on their part, of either the facts of the matter or the existing laws dealing with the particular situation. Keeping this in mind, I’ll try, through this article, to elaborate upon some of the relevant points which must be kept in mind by everyone while entering into any sort of transaction.

Common documents required for a case of any nature.

Any dispute of a civil or commercial nature, when it is brought before a court, is mainly fought on the basis of documents. It is relevant to point out here that when I say documents, I mean any document, be it executed and registered, executed & notarised, written, ,or Email, SMS & Whatsapp chats, telephone call recordings, audio/video recordings etc. Put simply, every document has some value before the court of law. It is also very pertinent to bring into the kind attention of everyone that every document referred above is admissible i.e. accepted in the Court. But, every admitted document has a different evidentiary value. A document may be admitted as evidence but, at the same time, may not be relied upon by the Hon’ble Courts.

For example, when under the provision of a law, a document is compulsorily required to be registered and the same is unregistered one, the Hon’ble Courts may refuse to treat that unregistered document as evidence in some situations. However, the factum of execution of such a document cannot be denied by the Court. Here, the Hon’ble Courts may look for other documents to complete the chain of transactions and also for the reasons of non-compliance by the concerned litigant with the legal provisions. Meaning thereby, it is always legally advisable to have proper documents, required as per the law, to ensure and to show that the party claiming relief from the Hon’ble Courts has either complied or was more than willing to comply with the requirements of the relevant legal provisions.

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Besides the registration of the documents, there is one more important aspect and that is, the proper payment for the required Stamp fee for the execution of the documents by the party claiming relief. Many a times, as I have seen, some litigants, while entering into an agreement, especially, in a loan transaction, executed the agreement on a maximum of hundred rupees stamp paper for a transaction ranging in lakhs. It is to be noted that by doing this the person may be saving some money for the time being but when the same agreement, executed on an insufficiently paid stamp paper, comes before the Court for a relief on the basis of that documents, the Hon’ble Court may deny the relief requested for, merely, on the ground of non-compliance of the provisions of the Indian Stamp Act, 1899.

Having discussed the evidentiary value of proper documents and reliability of those documents by the Hon’ble Courts, I will now discuss the nature of required of documents in the following transactions:

Commercial transactions,
Individual transactions,
Consumer transactions, and
Insurance transactions.

Commercial Transactions:

Commercial transactions are mainly based on the documents. One of the main reasons for this is that in today’s era, the nature of employment in companies/organisations is either transferable or for a fixed time period, or as a consultant etc. Therefore it is incumbent upon the officials dealing with every transaction to minutely record each and every detail of the transactions, minutes of meeting, and share the same with the opposite party through proper channel.

General guidelines under the major headings are as follows:

Legality of the company,
Compliances of the company,
Contractual obligations of the company,
Labour issues of the company,
Real Estate – Who has the title to the property and whether the sale of the property through an owner.
Insurance liability
i. Group

ii. Personal

Licences and Approval,
Profitability of the transactions,

It is important to note that in a general sale – the purchase agreement which also amounts to commercial transactions, parties are required to take into consideration the following:- (i) Written purchase order, (ii) Approval of the price/products, (iii) Delivery receipt of the products, (iv) Objections to the quality of products within the prescribed time, (v) Jurisdictional clause, etc.

Under Order 13 A of the Commercial Courts Act, 2015, the legislature has introduced a new concept called Summary Judgment in a commercial suit wherein the Hon’ble Court may adjudicate a claim and pass a judgment on an application filed by a party before recording the oral evidence. Meaning thereby, properly executed and compiled documents always favour the party relying on it.

Individual Transactions

Capacity to contract i.e., whether the person entering into contract is a:

Minor, or Lunatic

Free consent of the person entering into contract: The person entering into an agreement should be free from any influence and he should be willing to enter into the agreement without any fear or favour.

Valid consideration for the contract:- The consideration ( money or some work etc) should be legally permitted.

Lawful object/purpose of the contract:- Purpose of the agreement should be legal. An agreement, which has an unlawful and illegal object, is not enforceable in the court of law.

Legality of the documents/agreements:- Documents should be properly executed on a sufficient stamp paper.

Complaint under Section 138 of the Negotiable Instruments Act: It is advisable to transact i.e. to give a loan to anyone through legal channels. For example, payment by a cheque or an online transfer is the safest form of transactions. If, in case, an amount is given as a loan in the form of cash then the same should be accompanied through an agreement legally executed and the complainant should be ready to explain the source of the amount in the Court. In commercial transactions, the cheque should be accompanied with Purchase Order, invoice and other receipts.

Matrimonial Disputes

As per Section 21 C of the Hindu Marriage Act, 1955, no document shall be inadmissible in evidence in any proceeding at the trial of a petition (Divorce, Judicial Separation, Maintenance, etc) on the ground that it is not duly stamped or registered. Moreover, it is important for the parties to keep documents of every transaction. It is true that in matrimonial relationships, there can be some delay in lodging a complaint to the appropriate authority but it is equally important to note that inordinate delay in raising the issue is always admitted with suspicion over the factum of the incident. Therefore, it is important for the parties to keep documents of every transaction in their possession.

Consumer Transactions

Purpose of the transaction

  • Commercial
  • Personal

Receipt of payment for the transaction,
Authorised vendor,
Real Estate,
Approval of the project by the Authorities,
License for constructions of the buildings,
Payment of loan as per constructions of the project,
Terms of Builder buyer agreement.

It is noted that many a times the loan amount is disbursed to the developer by the Bank/NBFCs without complying with the terms of the tripartite agreement i.e. payment to be made as per the construction of the project, therefore, it is always advisable for the parties to keep an eye on the development of the project to ensure the compliance of the terms of builder-buyer agreement.

As per the provisions of the Consumer Protection Act, 2019, to avail the benefit of the said provisions, the transactions should not be for the commercial purpose. Here, it important to write that commercial purpose does not include use by a person of goods bought and used by him exclusively for the purpose of earning livelihood, by means of self – employment.

Insurance Transactions

Terms of insurance,
Time period of insurance.

It is often found that the terms of insurance are in multiple pages. Therefore, it becomes difficult for the policyholder (Insured) to go through the entire document. Also, one more thing, which creates an issue after the death of the policyholder, is the name of beneficiaries. It is advisable to read the terms of insurance or sign for an insurance policy only after proper verifications and also write the name of the beneficiaries carefully.

Online (E) Transactions
Authenticity of the products,
Mode of payment,
Terms of refund/return.

General clause which is applicable to every transaction:-

Place of resolution of dispute i.e. Place of suing/Jurisdiction. Jurisdiction is of three types;

  • Pecuniary jurisdiction
  • Territorial jurisdiction
  • Subject matter jurisdiction

As per Sections 15 to 20 of Code of Civil Procedure, 1908, subject to other conditions, there are three major criteria which guide the parties to decide the place of jurisdictions, (i) Where the subject-matter is situated, (ii) Opposite party/Defendant, at the time of commencement of the suit, resides, carries on business, or works for gain, and (iii) cause of action arises.

Further, if there are multiple jurisdictions where the cause of action has arisen, the suing party/plaintiff may opt for any one of them. More importantly, the parties, out of their own free will, can also agree to an exclusive jurisdiction clause.

Mode of resolution of dispute

In today’s time, with the advent of Alternative Dispute Resolution (ADR), parties may voluntarily agree to resolve their disputes through processes like Arbitration, Mediation & Conciliation without approaching the Hon’ble Trial Courts. Once the Parties have agreed, after complying with the legal provisions, to resolve their respective disputes through Arbitration then they are bound to follow the terms of the contract agreed between the parties.

Communication for default:

In every transaction, it is incumbent upon the parties claiming relief to raise the dispute to the opposite party within the agreed period. Suppose, the party, claiming the relief, has used the products for the expected purpose but later, when there is a demand for the payment of the products by the seller, the buyer raises the issue of quality of the products which will per se be rejected by the Hon’ble Courts. It is the duty of the party to raise the dispute within the fixed time period and return the goods to the seller.

In nutshell, it is important to note that every form of the document is helpful in preparing or defending a case in the Courts. The things which are required for anyone are- the creation of the proper and relevant documents and to keep them at a proper place or with an authorised person.

(By Rajnish Kumar Jha, Founding Partner, Actus Legal Associates and Advocates. The author can be contacted at rajnish@actuslegal.in)

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