Frequently Asked Questions
My builder-floor developer has not delivered under a collaboration agreement. What is the route?
Usually a suit for specific performance or recovery before the Commercial Court, paired with a criminal complaint where funds were collected on misrepresentation about title, sanction or FAR. Where the collaboration agreement contains an arbitration clause it displaces the suit, and the claim begins with a Section 21 notice instead.
Is an agreement to sell enough, or do I need a registered sale deed?
An unregistered agreement to sell does not transfer title and cannot found a claim for possession as owner. It does support specific performance, and part performance under Section 53A of the Transfer of Property Act can protect a purchaser already in possession who has performed his side. The safe course is registration within the four-month window.
Does Delhi RERA cover my project?
Only projects physically within the NCT, which is a comparatively small pool. Delhi's stock is dominated by builder floors and redevelopment, much of which falls below the registration thresholds or predates the Act. Those disputes run as consumer complaints, civil suits or criminal complaints rather than RERA claims.
What should I verify before signing anything in Delhi?
Title flow and chain of documents, sanctioned plan and permissible FAR, whether the property is freehold or leasehold and any conversion pending, encumbrance, and the seller's authority where a power of attorney is involved. Delhi has a long history of GPA-based transfers, which the Supreme Court held in Suraj Lamp do not convey title.
When is a Section 9 insolvency application the right tool for recovery?
Where the operational debt exceeds one crore rupees, is undisputed, and the debtor has the capacity to pay but is not paying. The consequence is that the loss of control of the company applies pressure a civil suit cannot. It is the wrong tool where the debt is genuinely disputed, because a pre-existing dispute defeats the application and the tribunal will not adjudicate a contested claim.
Can homebuyers trigger insolvency against a builder?
Yes, as financial creditors, but the Section 7 proviso requires the application to be brought jointly by at least one hundred allottees of the same project or ten percent of the total, whichever is less. That threshold was upheld by the Supreme Court and makes coordinated action among allottees a precondition rather than an afterthought.
My co-shareholders have squeezed me out. Arbitration or NCLT?
Claims of oppression and mismanagement under Sections 241 and 242 are not arbitrable, because the relief operates in rem and only the tribunal can grant it. An arbitration clause in the shareholders' agreement does not oust that jurisdiction, though purely contractual claims between shareholders under the same agreement will still go to arbitration. Matters frequently run on both tracks.
Which bench hears a Delhi company, and where does the appeal go?
The New Delhi benches of the NCLT, with appeals to the NCLAT at New Delhi within thirty days, extendable by fifteen on sufficient cause. Delhi is the one region where the tribunal, the appellate tribunal and the High Court all sit in the same city a genuine practical advantage over Gurugram and the NCR districts.
I have received a legal notice. Do I have to reply?
There is no legal obligation to reply, and silence does not amount to admission. But it is usually a mistake not to. A reply fixes your version of events at a point when the other side has committed to theirs, and that early record carries real weight later. The error to avoid is over-replying a notice answered with the full defence, every document and every argument, simply hands the other side time to prepare against it.
Is a legal notice required before I sue?
Not for an ordinary suit against a private party. It is mandatory in two situations that matter: a statutory demand notice within thirty days of a cheque return, without which no Section 138 prosecution is possible; and two months' notice under Section 80 CPC before suing the government or a public officer. Beyond those, a notice is optional but often worth sending, because it can produce a written acknowledgment that extends limitation.
Our agreement is unstamped. Does that destroy the arbitration clause?
No, not since the seven-judge bench decision in In Re: Interplay Between Arbitration Agreements, which held that non-stamping renders an instrument inadmissible rather than void, and that the defect is curable by impounding and payment of duty with penalty. That reversed the earlier position which had made unstamped agreements a routine delaying tactic at the appointment stage. The duty still has to be paid, but the clause survives.
Is an email exchange or a clickwrap acceptance a binding contract?
Yes. Section 10A of the Information Technology Act gives electronically formed contracts the same validity as paper, provided offer, acceptance and consideration are demonstrable from the record. The exclusions are narrow but important negotiable instruments, powers of attorney, trusts, wills and conveyances of immovable property still require conventional execution and cannot be concluded by email.
Are liability caps and liquidated damages clauses enforceable?
A cap agreed between commercial parties is generally upheld. A liquidated damages figure is recoverable only up to reasonable compensation for the loss actually suffered under Section 74 the stipulated sum operates as a ceiling, not an entitlement, and the claimant must still establish loss. Recording the basis of the pre-estimate in the contract itself materially improves the clause's prospects.
What does an exclusive jurisdiction clause naming Delhi actually achieve?
It narrows a choice between courts that both already have jurisdiction; it cannot create jurisdiction where none exists. Where Delhi has a genuine connection performance, payment, or the defendant's place of business the clause is generally enforced and a suit filed elsewhere returned under Order VII Rule 10. Pairing it with an arbitration clause needs care, because the two must not contradict each other on seat and forum.
Which court appoints my arbitrator?
The High Court of the State in which the seat lies, on an application under Section 11(6). A Delhi seat goes to the Delhi High Court and a Bengaluru seat to the High Court of Karnataka both in the same city as the supervising commercial court. A Gurugram or Faridabad seat travels to Chandigarh, and a Noida or Ghaziabad seat to Prayagraj, while interim relief stays with the local district court.
Where do Section 9 and Section 34 applications go?
To the commercial court of the seat, not the High Court that made the appointment. Interim relief under Section 9 is available before the tribunal is constituted, commonly to restrain encashment of a bank guarantee, freeze disposal of assets or preserve records, and courts list it within days where urgency is shown.
The other side drafted a clause letting them appoint the sole arbitrator. Is that enforceable?
No. Following Perkins Eastman, a party with an interest in the outcome cannot unilaterally appoint the sole arbitrator, and an appointment made under such a clause is void. The correct response is not to participate but to move Section 11 immediately and have the court make the appointment.
My clause names a venue but leaves the seat blank. Is it still workable?
Usually yes. A blank seat does not by itself void the clause; the venue is ordinarily treated as the seat unless the contract indicates otherwise, which then carries supervisory jurisdiction to that State's High Court. Parties who negotiated in Delhi and inserted Noida as the venue frequently find their arbitration is an Allahabad matter.
How narrow is a Section 34 challenge in practice?
Very. The grounds are confined to patent illegality on the face of the award, breach of natural justice, or conflict with public policy. Courts will not reappreciate evidence or substitute their own view of the contract, and a challenge framed as a rehearing on the merits is dismissed with costs. The three-month limitation, extendable by only thirty days, is absolute.
What disputes cannot be sent to arbitration at all?
Oppression and mismanagement under Sections 241 and 242 of the Companies Act, because the relief operates in rem and only the NCLT can grant it. RERA claims are statutory and additional, so a builder-buyer arbitration clause does not oust the Authority. Criminal proceedings, insolvency and matrimonial status are likewise outside the scope, and the MSMED Act overrides a private clause for registered suppliers.
Does my location decide where I file a trade mark?
Yes, for the registry branch. Applications go to the office having territorial jurisdiction over the applicant's principal place of business Delhi for applicants in Delhi, Haryana and Uttar Pradesh, and Chennai for applicants in Karnataka and the southern States. Protection itself is national once granted; only examination and opposition sit with the branch.
Why do so many IP suits end up in the Delhi High Court?
Because it has the most developed IP practice in the country and, since 2021, a dedicated Intellectual Property Division with its own rules. Jurisdiction is available wherever infringement occurs or the plaintiff carries on business, which in practice gives most rights holders a legitimate route to Delhi. For a Bengaluru company, whether to litigate at home or in Delhi is a real strategic choice worth taking early.
The IPAB was abolished. Where do appeals and rectifications go now?
To the High Courts. The Tribunals Reforms Act, 2021 abolished the Intellectual Property Appellate Board and transferred its jurisdiction, so appeals from the Registrar and rectification petitions are now heard by the High Court having jurisdiction. The Delhi High Court created its Intellectual Property Division to absorb that workload, which is part of why it has become the default forum.
I have received an opposition notice. What are the timelines?
An opposition must be filed within four months of advertisement in the Trade Marks Journal, and the applicant then has two months to file a counter-statement. That two-month period is not extendable, and failure to file within it results in the application being treated as abandoned the most common way a defensible mark is lost.
Can we patent our software in India
Not as such. Section 3(k) of the Patents Act excludes computer programmes per se and algorithms from patentability. What can be protected is a genuine technical contribution an improvement in hardware function, resource efficiency or a technical process where the claims are drafted around that contribution rather than around the code. Copyright protects the code itself automatically.
Who owns IP created by our contractors and consultants?
Not the company, unless there is a written assignment. Copyright in a commissioned work vests in the author, and Section 19 of the Copyright Act requires assignment to be in writing and signed. A purchase order that recites ownership is not an assignment. Every contractor agreement should carry an express present assignment of all IP, executed at engagement rather than on exit.