The Delhi High Court recently observed that it is the duty of briefing counsel or instructing law firms to ensure that caselaws cited by a litigant's lawyers during arguments are settled law and not under challenge in the form of an appeal or by way of a review, or revision plea [Renew Wind Energy (Ap2) Pvt. Ltd. Vs Solar Energy Corporation of India].
The Court made the observation after noting that the lawyers representing a litigant (petitioner) had relied on an order of the Central Electricity Regulatory Commission (CERC) against which a review petition was pending.
This meant that the finality of the ruling cited was still under question, making it inappropriate to cite the order as a precedent.
However, the lawyers had failed to mention to the Court that the said order was under review.
Similarly, the Court noted a "similar lack of diligence" by the petitioner in citing a High Court judgment against which an appeal was pending before the Supreme Court.
Justice Purushaindra Kumar Kaurav observed that citing such caselaws, whose finality is yet to be settled could mislead the Court.
Briefing counsel and law firms are expected to verify such details before citing the caselaw, the Court observed.
“The instructing and briefing counsels/law firms, are expected to diligently and sincerely verify authorities before they cite them in a Court. Reliance upon a decision that is under review or appeal, without disclosing such pendency, amounts to lack of candour to the Court and may mislead the adjudicatory process. Such conduct falls short of the standard of fairness and completeness that is expected from officers of the Court,” the Court's November 3 ruling said.
The Court explained that it does not expect senior advocates who make arguments in the case to personally investigate each judgment cited during hearings.
Rather, this responsibility would fall on the lawyers and law firms who instruct such senior lawyers, the Court said.
"This Court does not expect learned senior counsels to personally investigate each judgement which they would cite before a court of law, and to check whether a review, appeal or revision is pending against the same. That duty rests upon the counsel or firm instructing the senior counsels," it said.
The Court was dealing with a dispute arising from an alleged shortfall in the supply of power from a 300 megawatt wind power project in Gujarat operated by a company called Renew Wind Energy (petitioner) to Solar Energy Corporation of India (SECI/ respondent).
SECI sought compensation from Renew Wind on account of the shortfall and an alleged breach of a Power Purchase Agreement between the two. A notice seeking such compensation was issued to Renew Wind by SECI.
Renew Wind then moved the High Court seeking interim orders under Section 9 of the Arbitration and Conciliation Act, 1996. Renew Wind sought to restrain any coercive action against it before an arbitral tribunal could be constituted to resolve the disputes between the two parties.
Before the High Court, counsel representing Renew Wind placed on record a note citing an order passed by the CERC in support of its arguments.
However, the Court noted that the CERC ruling cited was under review. This fact was not disclosed by Renew Wind's counsel, the Court observed.
The Court also acknowledged that after it had reserved its verdict in the matter, the CERC dismissed the review petition. However, this did not absolve the counsel from their responsibility to disclose that a review petition filed against the CERC order was pending when the same was cited, the Court said.
"At the time of reliance, the petitioner could not have known whether the review would be allowed or rejected; had it been allowed, the petitioner would have been citing an order later set aside in review. Therefore, such disclosures are expected from parties, seeking to rely on a decision as laying down the correct position of law," the Court explained.
The Court added,
“The justice delivery system functions on mutual trust between the Bar and the Bench. Each stakeholder, the litigant, the counsel, and the Court, bears a shared responsibility towards upholding its integrity. Any lapse, diminishes confidence in the system as a whole."
The Court, however, eventually accepted the petitioners' counsel's assurance that the lapses noticed by it were not deliberate.
"The Court does not propose to dwell further on the issue. During the hearing, Mr. Mehta, learned senior counsel, submitted that the nondisclosure of the pendency of the SLP was inadvertent and bona fide, and the Court accepts his explanation in that spirit," it said.
It clarified that this would not have a bearing on the merits of the case.
The Court eventually rejected the petition on grounds of maintainability, holding that the CERC has the exclusive power to refer a dispute involving power-generating companies or transmission licensees for arbitration.
Senior Advocate Jayant Mehta instructed by Trilegal with advocates Vishrov Mukherjee, Girik Bhalla, Sai Snigdha Nittala, Juhi Senguttuvan, Priyanka Vyas, Yashaswi Kant, Prayush Singh and Pallavi Arora appeared for Renew Wind Energy.
Senior Advocate MG Ramachandran with advocates Anushree Bardhan, Srishti Khindaria, Somya Sahni, Ritika Singh and Aneesh Bajaj appeared for SECI.
[Read order]