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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 for you?
Ajay: Well I am a fan of technology. I love gadgets and keep looking for new things and softwares, which can be used and increase productivity. I like to give myself abreast with the ever developing softwares aand platforms or some kind of interface which increases the productivity and ease the way we work. During my initial days, I used to go to the lower courts to the typist to get documents and applications typed.. We used to use whiteners to correct the typing errors and re-type it. Carbon paper was used to have copies of the typed document. Senior people have seen more difficult times back then. Earlier, we used to scroll through pages to find citation of a precedent in physical books. Now we have the benefit of the technology to use SCC online, Manupatra, Indiankanoon and may more such engines.
In our offices, we have shifted to use of these technologies like Microsoft products. We use Adobe for pdf files. We use accounting software is like Tally to ensure that accounts are properly maintained; bills are properly raised and realised. We use a legal software called Provakil which is the app which accesses all the data of cases from various courts across the country and provide us with the status of the cases. We use Document Scanners on the phones. We use video conferencing apps like Zoom, Web Ex, MS Teams for virtual meetings. We use cloud services like One Drive, Dropbox,google Drive, icloud, Adobe DC. The pandemic has taught us to have our documents /files saved on the cloud so that it is accessible in case similar situation arise again. Once you have your files handy in your handheld or on cloud, its easy to travel with bulky files in case of travelling to some other court in other state. There are various tools which as I said we use and in times to come we are hearing about AI. Artificial Intelligence is coming in legal space. It is there though in foreign jurisdictions. Surely it will have some impact in the way we all work.
I am generally very inclined to educate myself about tech in law so that it can be implemented in my office of at least in my functioning. You see adapting to technology is a necessity but at the same time transformation to technology is not everyone’s cup of tea. While change is the only constant in life yet to bring a change it take a lifetime sometimes. We all are used to do work physically and suddenly using technology and depend on it, it takes time. We use Social apps like whatsapp, linked in for networking and faster communication through groups created for cases with concerned team members. So yes there are various tools we use currently in the technology space for law but yet I feel that there is so much more to explore and bring into application in offices. And u see, adapting to technology is also of immense importance and unless we keep pace with the technological advancement, we are interfering with the growth.
Host: Time is money in any profession and in legal it's most of all. How do you ensure to make the best of your time as a lawyer?
Ajay: Well it is said that time is money. See as lawyers, we don’t have any tangible goods to sell. What we have is time at our disposal. We value time. As lawyers, we can advise our clients in accordance with law, file their cases and argue them in a court of law. The final judgment is not in our hands. If we can manageyour time well, surely it will result into money which we will strive for.
To manage my time, as I said, I use a lot of technology which increase my productivity. I try to keep myself organized by having my ‘to do list’. I have small targets every day to accomplish. What is to be done, what is to be completed, what is to be assigned, what is to be followed up so on and so forth. Keeping this organized way of working possibly keeps me stress free to a large extent. Since I use technology, I use iPads and iPhones, have doc on cloud so I utilize my time whenever I am waiting physically for the matter to be called out in court. I use dictation software to dictate short pleadings, applications, email communications etc. I get into client meetings and team meetings on virtual video conferencing platforms through my phone. I use the personal assistant ‘siri’ on my phone to create my events in the calender to ensure there are no overlapings in your time management. I am sure that I don’t utilise my time on nonbillable work so the priority is to put your time and billable hours. Hi encourage people to a multitasker. All this enhances the productivity. We all are aware as to what is happening around us in the organisation. At the end of the day it makes us assess as to where we are lacking and we need to take steps to improve ourselves.
Host: what do you suggest to the young lawyers who want to pursue law. Do you have any suggestions or good points to share.
Ajay: It’s a difficult profession as any other profession. But for all youngsters who intend to join law as a profession, I would say that they need to be very focused and sincere towards this profession. It’s not a easy journey. It’s a demanding profession. It’s a profession where you when you are inexperience nobody will engage with you and when you are experienced, may you are too old. One needs to carve out his/her own mark and niche practice areas. You should land up at a good place/ law firm where one can gets a lot of exposure and then you have to put in your efforts to learn things. It’s that only assigned tasks are your responsibilities. You should be willing to learn more and see the opportunity. You should express your intent to learn. You should be good at research. One should do lot of internships during your law course. If you want to make a mark in this profession you need to be very sincere and focused. One should be willing to work at flexible hours of work, prepare thoroughly for your case.in a nutshell, one need to have a very focused approach.
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