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LexTalk World Talk Show with Ajay Abhay Monga, Partner at SNG & Partners, Advocates & Solicitors.


LexTalk World interviews Ajay Abhay Monga. Ajay started his career as an Individual lawyer on the civil side before joining the Firm in November 2001. He has been a litigation lawyer since then, having advised clients on various legal issues. Possessed with experience of over two decades in Legal Practice (Litigation) he has advised & represented clients in the areas of Banking, Corporate law, Human Resource, International Trade Finance, Litigation, Arbitration (Domestic & International), Insolvency & Bankruptcy Laws, Real Estate, Insolvency, Family disputes / Succession Planning, Property disputes, Foreign Exchange, Money Laundering etc. During these twenty years, he has carved out his expertise in niche practice area of Trade Finance & Alternate Dispute Resolution apart from general litigation. He regularly advises clients on various aspects of Letters of Credit, Stand-by Letters of Credits and Uniform Customs and Practices for Documentary Credits, an ICC publication.


Well-experienced in handling litigation pertaining to commercial contracts relating to Banking, International Contracts, Letters of Credits, Bank Guarantees, Stand-by Letters of Credit and drafting of various kinds of documents including internal policies of the clients, rendering opinion of vast and diverse questions under various statutes. He appears regularly before Supreme Court of India, High Courts, and various Tribunals constituted under various laws. He was part of a team of lawyers involved in International Arbitrations conducted under the Rules of The International Chamber of Commerce and the Singapore International Arbitration Centre. He has further expanded his area of practice by working in the realm of Media laws.


While being a litigation lawyer throughout, he has worked on Corporate side and has rendered Opinions on important issues on validity of e-signatures/ Digital signatures under the Information & Technology Act, e-recruitment & disciplinary action processes; drafted & vetted various arbitration clauses with specific emphasis of choice of law & choice of seat of arbitration.

A focused and result oriented approach coupled with strong understanding skills and providing apt & practical solutions to the clients, provides him maintain balance in maintaining client inter personal skills.


Interview:

Host: Tell us about a complex legal issue you worked on. Describe the complexity and tell us how you approached it?


Ajay: As a lawyer you come across various diverse issues every time you are faced with a new case. New Case brings along new facts and many a times the facts are such that you never imagined that such facts would exist. Many a times you are surprised to know such new facts that intrigues you to know more in detail. So recently, I came across such innovative facts in relation to an advisory matter by a banking client and not a litigation case. This advisory work gave me an opportunity to understand various aspects of online gaming apps. So, the work was like this. This client of ours was a banking client who wanted to repatriate certain amounts on behalf of its Indian customer to a foreign entity in relation to imports of goods and they came to us for an opinion if they can do so.


The import of goods was intangible goods. So it was not a case of physical import of goods from a foreign land to India. All these foreign remittances involve foreign exchange rules and regulations because every time when any funds are sent outside India there is an element of foreign exchange going out of country. So when we understood the facts of the matter we found it was in relation to some online game. We all use mobile devices for playing online games these days.


The technology has made it possible to have multiple games on our handheld and honestly we all are addicted to the phone these days. So this customer of the bank had developed a gaming app which had multiple games in it. You can say that it was a gaming aggregator kind of an app. One of the games in t had a distinct coin in it which could be used virtually to buy some stuff for the usage within the game. You see, we all play games and collect coins to be used to buy some equipment to be used within the game.


So this company had some contract with this foreign company for supply and integration of these coins into the gaming app. These coins were being downloaded by the Indian company from the portal of the foreign company and integrated into the gaming app and it was being done daily. Now for each such downloading of these virtual coins, the Indian company was to make payments to this foreign company by way of import remittance on a daily basis. The games were being played by the subscribers every day the coins were being used every day in huge numbers. So the question was whether there are actually any goods imported, how the client should satisfy itself of their being actual import of such virtual goods in India and what precautions the client should take before remitting the money to the foreign company, what documentation is required to ensure that it complies with all the foreign exchange regulations and other provisions of law including RBI guidelines and circulars.


We had a detailed brainstorming with the client to understand these facts and examine the contract between this Indian company in the foreign company. We had to look into the foreign exchange laws, RBI guidelines and circulars, provisions of contract act,, provisions of the gambling act to figure out whether the concerned game where these coins are used whether it’s a game of skill or it’s a gambling game. We had to search for certain case laws to figure out the distinction between what is the skill-based game and what is a gamble. So it was complex in some way for me as I had not encountered similar facts for an import payment for intangible import of goods and what all documentation would be required. The reserve bank of India mandates through their circulars to take certain documents for such intangible imported goods. What are these documents, how these documents have to be properly what did to ensure that the bank satisfied itself and complies with such circulars all those things were to be examined and advised. Therefore it was challenging and a good experience to delve into the facts before giving a concrete opinion to the client. Eventually we give the opinion that is in the facts and circumstances the import payments can be remitted to the foreign entity subject to obtaining certain documentations.


Host:The pandemic saw some courts begin moving towards more remote proceedings and availability. Is this sustainable, and a possible way to increase access to justice, in your opinion?


Ajay: I would say that no body could have imagined that we all would witness such a time, which pandemic has shown us. We used to hear stories from appearance that something happened during the partition as to how the situation was when partition took place and a possibly we have something like this to be shared with other children and grandchildren the pandemic situation was also seen by us in the country went into a complete standstill and lock down. God forbid, this happens again.


On remote working, I would say that it has brought a lot of change. Pandemic has brought a lot of change. The courts were using technology. It is not that the courts were not using technology prior to the pandemic. The technology was put into use by the courts earlier. We used to have e-courts in High Court of Delhi where few judges would access the file on the screen. There were screens in the court rooms also. We had display boards showing which is case is going on in the court. We had the process of e-filing. So the use of technology was there but nobody would have thought that the remove the functioning of the courts/remote working would have been thrust upon us in this fashion.


So I would say that remote functioning of the court was in the pipeline but the pandemic brought it ahead of its time and for good. It is said that change is the only constant and this change transformed the functioning of courts during the pandemic. During lock down there was a challenge so far as access to justice is concerned. The way our courts at all levels adapted to this technology is really appreciable and this brought access to justice accessible again during testing times. The infrastructure that was created towards this in the hour of need is commendable. I will also say that remote working has its advantages and disadvantages. This change helped us lawyers who had access to the requisite infrastructure to conduct the court hearings at the comfort of our offices. We used multiple screens to attend various courts across the country and without much travelling. It was productive and efficient.


So far as it’s sustainability is concerned, I personally feel that physical functioning of the course cannot be replaced at all with the virtual mode. There is a difference in presenting a case when you are physically before a judge. Your body language is different, your preparation is different in many ways. Similarly, in a physical trial, the behaviour of the witness can be seen by the court which is not possible in virtual environment. So, it is sustainable in some way or the other.


The hybrid mode is more practical, I would say, as you have a choice to present physically or virtually. But to make it more workable a lot of efforts are required to be put in, a lot of infrastructure need to be developed because we sitting in metros possibly are aware and are equipped with infrastructure, we are using technology in legal space but considering the remote areas where people sometimes don’t have basic necessities of life, expecting them to have a computer and internet is a challenge. I think that the courts are working towards it, the government should work on it to make it sustainable and hybrid system should be adopted which is more sustainable.


Host: How would you rate the current legal system's drive towards encouraging access to justice? Is there tangible movement in closing the justice gap?


Ajay: Well, when we talk about tangible movement towards access of justice, the fact of there being huge pendency of cases which have been highlighted many times statistically in all the courts across the country says it all. The fact that there is pendency of that level demonstrates that actually there is delayed justice. The cases languish in courts for decades. A lot is also attributed to the technical and cumbersome procedures which are in vogue since time immemorial. Where on one hand the huge pendency is a fact yet on the other hand the courts are surely making endeavour to dispose of cases. The ratio of pendency vis a vis disposal, there is a gap and this gap needs to be bridged so that access to justice reaches every citizen of the country.


The government and the courts are taking steps for appointment of new judges and filling up of vacancies. A lot more needs to be done. During the pandemic various urgent cases would have been filed and would have been disposed through virtual mode. So the disposal is happening. Endeavour is being made to dispose of the cases in the best possible manner. Further to make it more visible and apparent, alternate modes of dispute resolution needs to be adopted and encouraged.


We have arbitration & mediation processes. Setting about mediation centers with every court including the district court and High Courts have resulted in quick disposal through mediation process. These Mediation Centres are equipped with decent infrastructure and trained mediators. Arbitration with the passage of time has become more expensive now. Similarly, conciliation process is also an option to be encouraged for quick disposal of matters. We have arbitration and conciliation act where in the region is related to artificial have been put to extensive use but the provisions relating to conciliation have not been used that much.


Host: In the era of legal technology, what are the most commonly used tools fo