Dr. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW
THE CODE OF CIVIL PROCEDURE PROJECT “
ENFORCEMENTS OF FOREIGN JUDGEMENTS
”
SUBMITTED BY:
SUBMITTED TO:
KAUMUDI UMRAO
DR. RADHESHYAM PRASAD
ROLL NO:177
ASSISTANT PROFESSOR(LAW)
SEMESTER IV
DR. RML NLU
BA.LLB(H)
LUCKNOW.
ACKNOWLEDGEMENT
I am feeling highly elated work on the topic Enforcement Of Foreign Judgements under the guidance of my teacher. I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried m y best to pave the way for bringing more luminosity to this topic. I also to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic avai lable to me at the time of my busy research work and gave me assistance. KAUMUDI UMRAO
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TABLE OF CONTENTS
LIST OF CASES........................................................................................................................ 3 INTRODUCTION ..................................................................................................................... 4 ENFORCING FOREIGN JUDGMENTS IN INDIA-............................................................... 4 a. By filing an execution petition under section 44A of the cpc (i n case the conditions specified therein are fulfilled). ............................................................................................... 4 b. By filing a suit upon the foreign judgment /decree ............................................................ 5 44A. EXECUTION OF DECREES PASSED BY COURTS IN RECIPROCATING TERRITORY. ............................................................................................................................ 6 NATURE AND SCOPE OF SEC. 13, C.P.C. ........................................................................... 6 OBJECT OF SECTION.13 AND 14 ......................................................................................... 7 JURISDICTION TO FOREIGN COURTS ............................................................................... 7 SEC. 13 OF CPC, 1908.............................................................................................................. 8 WHEN FOREIGN JUDGMENT NOT CONCLUSIVE. ......................................................8 a.
Not pronounced by a court of competent jurisdiction: ................................................... 8
b.
Not given on the merits of the case: ............................................................................... 9
c.
Where the judgment is passed disregarding the indian law or the international law. ... 10
d.
Where the proceedings in which judgment was obtained are opposed to natural justice ………………………………………………………………………………………...11
e.
Where it has been obtained by fraud: ........................................................................... 12
f.
Where it sustains a claim founded on a breach of any law in force in india ................ 13
CONCLUSION........................................................................................................................ 14 BIBLIOGRAPHY- .................................................................................................................. 15
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LIST OF CASES
1. Moloji Nar Singh Raovs Shankar Saran,A.I.R.1062 S.C. 1737.
2. SirdarGurdial Singh v. Maharaja of Faridkot,ILR(1895)22Cal222PC. 3. D.T. Keymer v. P. Viswanatham,A.I.R 1916 P.C. 121. 4. Y. NarsimhaRao v. Y. Venkata Lakshmi,(1991)3 SCC 451.
5. AnoopBeniwal v. Jagbir Singh Beniwal,A.I.R 1990 Del. 305 at 311. 6. SankaranGovindan v. Lakshmi Bharathi,A.I.R 1974 S.C. 1764. 7. Satya v. Teja Singh, A.I.R.1975 S.C.105. 8. NarsimhaRao v. VenkataKakshmi,(1991)3 SCC 451. 9. Chengalvaraya Naidu v. Jagannath,A.I.R.1994 S.C.853. 10. T. SundaramPillai v. KandaswamiPillai,AIR 1941 Mad. 387.
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INTRODUCTION
With the advent of globalization and with India poised as a major international and global player in the world economy, it is apposite to consider the law concerning enforcement of foreign judgments in India. In law, the enforcement of foreign judgments is the recognition and enforcement rendered in another (“foreign”) jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement. The “recognition” of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another “foreign” country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit. 1 Recognition will be generally denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. However, the Code of Civil Procedure, 1908 has defined Foreign Court and Foreign Judgements as :Section 2 of the CPC, 1908 (5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government; (6) “foreign judgment” means the judgment of a foreign Court; In other words, a foreign judgment means an adjudication by a foreign court on a matter before it.
ENFORCING FOREIGN JUDGMENTS IN INDIA
A foreign judgment can be enforced in India in one of two ways: Firstly by filing anExecution Petition under Section 44A of the CPC (in case the conditions specified therein are fulfilled).
foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the Code. The said section provides that where a certified copy of a decree if any of the superior courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court. When a foreign judgment is sought to be executed under Section 44-A, it will be open to the judgment-debtor to rake all objections, which would have been open to him under Section 13 if a suit had been filed on such judgment. 2 The fact that out of six exceptions there
1
Joseph.L.M, Enforcement of Foreign Decres/Judgements in India, Legal India(March 8 th,2017,6:59PM), http://www.legalindia.com/enforcement-of-foreign-decrees-judgement-in-india/ 2 R.M.V. VellachiAchi v. R.M.A RamnathanChettiar , A.I.R. 1973 Mad 141. 4
has been due compliance with some of the exceptions is of no avail. The decree can be executed under Section 44-A only if all the conditions of Section 13 (a) to (f) are satisfied. 3 In other words – Judgments from Courts in “reciprocating territories” can be enforced directly by filing before an Indian Court an Execution Decree. Secondly by filing a suit upon the foreign judgment /decree
A foreign judgment may be enforced by instituting a suit on such foreign judgment. The general principle of law is that any decision by a foreign court, tribunal or quasi-judicial authority is not enforceable in a country unless such decision is embodied in a decree of a court of that country4. In such a suit, the court cannot go into the merits of the original claim and it shall be conclusive as to any mater thereby directly adjudicated upon between the same parties. Such a suit must be filed within a period of three years from the date of the judgment.5 In other words – Judgments from “non-reciprocating territories,” such as the United States, can be enforced only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment. The foreign judgment is considered evidentiary. The time limit to file such a law suit in India is within three years of the foreign judgment. However, “reciprocating territory” is defined in explanation 1 to Section 44A of India’s Civil Procedure Code as: “Any country or territory outside India which the Central Government may, by notificati on in the Official Gazette, declare as a reciprocating territory.”6
The List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of Civil Procedure, 1908, is as under : 1. United Kingdom 2. Singapore 3. Bangladesh 4. UAE 5. Malaysia 6. Trinidad & Tobago 7. New Zealand 8. The Cook Islands (including Niue)and The Trust Territories of Western Samoa 9. Hong Kong 10. Papua and New Guinea 11. Fiji 12. Aden.7
Takwani C.K., Civil Procedure with Limitations Act , 1963 142(Eastern Book Company,7 th Ed., 2016). 4 Roshanlal v. R.B. Mohan Singh, A.I.R. 1975 S.C. 824. 5 Takwani C.K., Civil Procedure with Limitations Act , 1963 142(Eastern Book Company,7 th Ed., 2016). 6 Mittal Karan, Executability and enforceability of foreign judgements in India, Lawfar(March 8 th ,2017,7:20PM), http://lawfarm.in/blogs/executability-enforceability-of-foreign-judgments-and-decrees-in-india. 7 Joseph.L.M, Enforcement of Foreign Decres/Judgements in India, Legal India(March 8 th,2017,6:59PM), http://www.legalindia.com/enforcement-of-foreign-decrees-judgement-in-india/. 3
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44A. EXECUTION OF DECREES PASSED BY COURTS IN RECIPROCATING TERRITORY.
(1) Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in [India] as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. (3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.8 “The Supreme Court held in the case of Moloji Nar Singh Raovs Shankar Saran 9 that a foreign judgment which does not arise from the order of a superior court of a reciprocating territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the basis of the foreign judgement” However in both cases the decree has to pass the test of S. 13 CPC which specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.
NATURE AND SCOPE OF SEC. 13, C.P.C.
A foreign judgment may operate as res judicata except in the six cases specified in the section 13 and subject to the other conditions mentioned in Sec. 11 of C.P.C. The rules laid down in this section are rules of substantive law and not merely of procedure 10 . The fact that the foreign judgment may fail to show that every separate issue, such as, the status of the contracting parties, or the measure of damages, was separately framed and decided, is irrelevant unless it can be shown that failure brings the case within the purview of one of the exceptions to Section 13.11
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Bhatt Sresha, Foreign judgements,Akademika(March 8 th ,2017, 8:23PM), https://www.lawctopus.com/academike/foreign-judgments-context-indian-law-enforcement-arbitral-awards/. 9 A.I.R.1062 S.C. 1737. 10 Mologi Nar Singh RaoShitole v. Sankar Saran, A.I.R.1962 S.C. 1737. 11 Takwani C.K., Civil Procedure with Limitations Act , 1963130( Estern Book Company,7 th Ed., 2016). 6
OBJECT OF SECTION.13 AND 14
The judgment of a foreign court is enforced on the principle that where a court of competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The rules of private international law of each State must in the very nature of things differ, but by the comity of nations certain rules are recognized as common to civilized jurisdictions. Through part of the judicial system of each State these common rules have been adopted to adjudicate upon disputes involving a foreign element and to effectuate judgments of foreign courts in certain matters, or as a result of international conventions. 12 Such recognition is accorded not as an act of courtesy but on considerations of justice, equity and good conscience 13 . An awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining our notions of justice and public policy. We are sovereign within our territory but "it is no derogation of sovereignty to take account of foreign law." 14
JURISDICTION TO FOREIGN COURTS
The following circumstances would give jurisdiction to foreign courts: 1. Where the person is a subject of the foreign country in which the judgment has been obtained; 2. Where he was a resident in the foreign country when the action was commenced and th; 3. Where the person in the character of plaintiff selects the foreign court as the forum for taking action in which forum he issued later; 4. Where the party on summons voluntarily appeared; and 5. Where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained. 15
12
R.Vishwanathan v. Rukn-ul-Mulk Syed Abdul,A.I.R.1963 S.C.1. Satya v. Teja Singh,A.I.R.1975 S.C.105. 14 Takwani C.K., Civil Procedure with Limitations Act , 1963 130(Eastern Book Company,7 th Ed., 2016). 15 Ray Sukumar, The Code of Civil Procedure 56(Lexis Nexis,3rd Ed.,2015). 13
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SEC. 13 OF CPC, 1908
WHEN FOREIGN JUDGMENT NOT CONCLUSIVE.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except(a) Where it has not been pronounced by a Court of competent jurisdiction; (b) Where it has not been given on the merits of the case; (c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [India] in cases in which such law is applicable; (d) Where the proceedings in which the judgment was obtained as opposed to natural justice; (e) Where it has been obtained by fraud; (f) Where it sustains a claim founded on a breach of any law in force in [India]. 16 The awards and decrees of the Indian courts are sacrosanct. However, Section 13 of the Code of Civil Procedure 1908 (CPC) lays down that a foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in few cases.
A. NOT PRONOUNCED BY A COURT OF COMPETENT JURISDICTION:
It is a fundamental principle of law that the judgment or order passed by the court, which has no jurisdiction, is null and void. Thus, a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction . Such judgment must be by a court competent both by the law of state, which has constituted it and in an international sense and it must have directly adjudicated upon the "matter" which is pleaded as res judicata. But what is conclusive is the judgment, i.e. the final adjudication and not the reasons for the judgment given by the foreign court. Thus if A sues B in a foreign court, and if the suit is dismissed, the decision will operate as a bar to a fresh suit by A in India on the same cause of action. On the other hand, if a decree is passed in favor of A by a foreign court against B and he sues B on the judgment in India, B will be precluded from putting in issue the same matters that were directly and substantially in issue in the suit and adjudicated upon by the foreign court In the case of Moloji Nar Singh Rao v. Shankar Saran 17 , a suit was filed by the plaintiff in a foreign Court for recovery of some amounts against the defendants. The Defendants did not appear despite service of the writ of summons. The suit thereafter was proceeded exparte against the defendants. The claim was decreed. The decree was brought to 16
Takwani C.K., Civil Procedure with Limitations Act , 1963 133(Eastern Book Company,7 th Ed., 2016). A.I..R 1962 S.C. 1737.
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the local court for execution. After a round of litigation on the executability of the foreign decree the matter came up before the Supreme Court of India. The major issue which came up before the Court for consideration was “what conditions are necessary for giving jurisdiction to a foreign court before a foreign judgment is re garded as having extra-territorial validity.” The Supreme Court in order to answer this issue relied upon the Halsbury’s Laws of England Vol. III p. 144 para 257 (3 rd Edition) and held that none of those conditions were satisfied in the present case. The Court while applying those conditions observed that:
(a) The respondents (defendants) were not the subjects of Gwalior (foreign country). (b) They did not owe any allegiance to the Ruler of Gwalior and therefore they were under no obligation to accept the judgments of the Courts of that stat e. (c) They were not residents in that state when the suit was instituted. (d) They were not temporarily present in that State when the process was served on them. (e) They did not in their character as plaintiffs in the foreign action themselves select the forum where the judgment was given against them (f) They did not voluntarily appear in that court. (g) They had not contracted to submit to the jurisdiction of the foreign court.
Therefore the Supreme Court held that the foreign decree was a nullity and could not be executed in the local courts. The Supreme Court further relied upon a Privy Council decision in the case of SirdarGurdial Singh v. Maharaja of Faridkot 18 , delivered by Lord Selbourne, where it was held that “In a personal action to which none of these causes of jurisdiction previously discussed apply, a decree pronounced in absentem by a foreign Court to the jurisdiction of which the defendant has not in any way submitted himself is by international law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity, by the Courts or every nation except (when authorized by special local legislation) in the country of the forum by which it was pronounced.”
B.
NOT GIVEN ON THE MERITS OF THE CASE:
In order to operate as res judicata, a foreign judgment must have been given on merits of the case. A judgment is said to have been given on merits when, after taking evidence and after applying his mind regarding the truth or falsity of the plaintiff's case, the Judge decides the case one way or the other. Thus, when the suit is dismissed for default of appearance of the plaintiff; or for non-production of the document by the plaintiff even before the written statement was filed by the defendant, or where the decree was passed in consequence of 18
I.L.R. (1895)22 Cal 222 P.C. 9
default of defendant in furnishing security, or after refusing leave to defend, such judgments are not on merits. However, the mere fact of a decree being ex parte will not necessarily justify a finding that it was not on merits. The real test for deciding whether the judgment has been given on merits or not is to see whether it was merely formally passed as a matter of course, or by way of penalty for any conduct of the defendant, or is based upon a consideration of the truth or falsity of the plaintiff's claim, notwithstanding the fact that the evidence was led by him in the absence of the defendant. 19
The fountainhead of all decisions under this head has been the decision of the Privy Council in the case of D.T. Keymer v. P. Viswanatham .20 In this case, a suit for money was brought in the English Courts against the defendant as partner of a certain firm, wherein the latter denied that he was a partner and also that any money was due. Thereupon the defendant was served with certain interrogatories to be answered. On his omission to answer them his defence was struck off and judgment entered for the plaintiff. When the judgment was sought to be enforced in India, the defendant raised the objection that the judgment had not been rendered on the merits of the case and hence was not conclusive under the meaning of S. 13(b) of CPC. The matter reached the Privy Council, where the Court held that since the defendant’s defence was struck down and it was treated as if the defendant had not defended the claim and the claim of the plaintiff was not investigated into, the decision was not conclusive in the meaning of S. 13(b) and therefore, could not be enforced in India. In the case of Y. NarsimhaRao v. Y. Venkata Lakshmi 21 , the Supreme Court while interpreting S. 13(b) of CPC held that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. The Court further held that a mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the Court, or an appearance in the court either in person or through a representative for objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case. C.
WHERE THE JUDGMENT IS PASSED DISREGARDING THE INDIAN LAW OR THE INTERNATIONAL LAW.
Judgment based upon an incorrect view of international law or a refusal to recognize the law of India where such law is applicable is not conclusive. But the mistake must be apparent on the face of the proceedings. Thus, where in a suit instituted in England on the basis of a
Takwani C.K., Civil Procedure with Limitations Act , 1963 134(Eastern Book Company,7 th Ed., 2016). 20 A.I.R 1916 P.C. 121. 21 (1991) 3 S.C.C. 451. 19
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contract made in India, the English court erroneously applied English law, the judgment of the court is covered by this clause in as much as it is a general principle of Private International Law that the rights and liabilities of the parties to a contract are governed by the place where the contract is made (lex loci contractus). "When a foreign judgment is founded on a jurisdiction or on a ground not recognized by Indian law or International Law, it is a judgment which is in defiance pf the law. Hence, it is not conclusive of the matter adjudicated therein and, therefore, unenforceable in this country."22 The case of AnoopBeniwal v. Jagbir Singh Beniwal 23 relates to a matrimonial dispute between the parties. The facts of the case are that the plaintiff had filed a suit for divorce in England on the basis of the English Act, that is the Matrimonial Causes Act, 1973. The particular ground under which the suit was filed was “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” This ground is covered by S. 1(1)(2)(b) of the Matri monial Causes Act, 1973. The decree was obtained in England and came to India for enforcement. The respondent claimed that since the decree was based on the English Act, there was refusal by the English Court to recognise the Indian Law. The Court held that under the Indian Hindu Marriage Act under S. 13(1)(ia), there is a similar ground which is “cruelty” on which the divorce may be granted. Therefore the English Act, only used a milder expression for the same ground and therefore there was no refusal to recognise the law of India. Thus the decree was enforceable in India.
D.
WHERE THE PROCEEDINGS IN WHICH JUDGMENT OBTAINED ARE OPPOSED TO NATURAL JUSTICE
WAS
It is the essence of a judgment of a court that it must be obtained after due observance on the judicial process, i.e., the court rendering the judgment must observe the minimum requirements of natural justice - it must be composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case. A judgment, which is the result of bias or want of impartiality on the part of a judge, will be regarded as a nullity and the trial "corum non judice". Thus a judgment given without notice of the suit to the defendant or without affording a reasonable opportunity of representing his case is opposed to natural justice. Similarly, a judgment against a party not properly represented in the proceedings or where the judge was biased is contrary to natural justice and, therefore, does not operate as res judicata. But the expression "natural justice" in clause (d) of Section 13 relates to the irregularities in procedure rather than to the merits of the case. A foreign judgment of a competent court, therefore, is conclusive even if it proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured; correctness of the judgment in law or evidence is not predicated as a condition for recognition of its conclusiveness by the municipal court. Thus, a foreign judgment is not open to attack on the ground that the law of Takwani C.K., Civil Procedure with Limitations Act , 1963 135(Eastern Book Company,7 th Ed., 2016). A.I.R 1990 Del. 305 at 311.
22
23
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domicile had not been properly applied in deciding the validity of adoption or that the court disagrees with the conclusion of the foreign court, if otherwise the principles of natural justice have been complied with.24 In the case of SankaranGovindan v. Lakshmi Bharathi 25, the Supreme Court while interpreting the scope of S. 13(d) and the expression “principles of natural justice” in the context of foreign judgments held as follows: “… it merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has nothing to do with the merits of the case. If the proceedings be in accordance with the practice of the foreign court but that practice is not in accordance with natural justice, this court will not allow it to be concluded by them. In other words, the courts are vigilant to see that the defendant had not been deprived of an opportunity to present his side of the case. … The wholesome maxim audialterempartem is deemed to be universal, not merely of domestic application, and therefore, the only question is, whether the minors had an opportunity of contesting the proceeding in the English Court. If notices of the proceedings were served on their natural guardians, but they did not appear on behalf of the minors although they put in appearance in the proceedings in their personal capacity, what could the foreign court do except to appoint a court guardian for the minors.” 26
In this case it was held that since the natural guardians who were served with the notices did not evince any interest in joining the proceedings, the appointment of an officer of the court to be guardian ad litem of the minors in the proceedings was substantial compliance of the rule of Natural justice. E.
WHERE IT HAS BEEN OBTAINED BY FRAUD:
It is a well-established principle of Private International Law that if a foreign judgment is obtained by fraud, it will not operate as res judicata. Lord Denning observed: " No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud." Cheshire rightly states: "It is firmly established that a foreign judgment is impeachable for fraud in the sense that upon proof of fraud it cannot be enforced by action in England." All judgments whether pronounced by domestic or foreign courts are void if obtained by fraud, for fraud vitiates the most solemn proceeding of a court of justice. Explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was "mistaken", it might be shown that it was "misled". There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been wrongly decided, namely, that on the merits, the Takwani C.K., Civil Procedure with Limitations Act ,1963135-136(Eastern Book Company,7 th Ed., 2016). 25 A.I.R 1974 S.C. 1764. 26 Ray Sukumar, The Code of Civil Procedure 58(Lexis Nexis,3rd Ed.,2015). 24
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decision was one which should not have been rendered, but it can be set aside if the court 27 was imposed upon or tricked into giving the judgment In the leading case of Satya v. Teja Singh 28 , where a husband obtained a decree of divorce against his wife from an American Court averring that he was domiciled in America. Observing that the husband was not a bonafide resident or domicile of America, and he had played fraud on a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and a nullity. Again, in NarsimhaRao v. VenkataKakshmi 29, A husband obtained a decree of divorce against his wife B again from an American High Court on the ground that he was a resident of America. Then he remarried C. B filed a criminal complaint against A and C for bigamy. A and C filed an application for discharge. Dismissing the application, the Supreme Court held that the decree of dissolution of Marriage was without jurisdiction in as much as neither the marriage was solemnized nor the parties last resided together in America. It was, therefore, unenforceable in India. In Chengalvaraya Naidu v. Jagannath 30 , the Supreme Court stated: " It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of the law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." The fraud may be either fraud on the part of the party invalidating a foreign judgment in whose favor the judgment is given or fraud on the court pronouncing the judgment. Such fraud, however, should not be merely constructive, but must be actual fraud consisting of representations designed and intended to mislead; a mere concealment of fact is not sufficient to avoid a foreign judgment.
F.
WHERE IT SUSTAINS A CLAIM FOUNDED ON A BREACH OF ANY LAW IN FORCE IN INDIA
Where a foreign judgment is founded on a breach of any law in force in India, it would not be enforced in India. The rules of Private International Law cannot be adopted mechanically and blindly. Every case, which comes before an Indian Court, must be decided in accordance with Indian law. It is implicit that the foreign law must not offend our public policy. 31 Thus a foreign judgment for a gaming debt or on a claim, which is barred under the Law of Limitation in India, is not conclusive. Similarly, a decree for divorce passed by a foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is indissoluble. It is implicit that the foreign law and foreign judgment would not offend against our public policy. 32 Takwani C.K., Civil Procedure with Limitations Act , 1963 136-137(Eastern Book Company,7 th Ed., 2016). 28 A.I.R.1975 S.C.105. 29 (1991) 3 S.C.C.451. 30 A.I.R.1994 S.C.853. 31 Volume I,Thakkar C.K, Code of Civil Procedure 305(Eastern Book Company,7 th Ed., 2016) 32 Takwani C.K., Civil Procedure with Limitations Act , 1963 138(Eastern Book Company,7 th Ed., 2016). 27
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In the case of T. SundaramPillai v. KandaswamiPillai33, (facts already stated above), the plea of the defendant was that the judgment was obtained in breach of the Contract Act since the defendants at the relevant time were minors when the contract was entered into and since under the Contract Act they were not competent to enter into a contract, the claim was founded on the breach of the Indian Law. The Court held as follows: “This claim is founded partly perhaps upon a breach of the contract Act, but also partly upon a claim under the Contract Act which in no way involves its breach. Whether that claim is a good one or a bad one is not for me now to decide. The District Munsif of Trivandrum has given a decree to the appellant and that decree sustains a claim which was not wholly founded upon a breach of the Contract Act. It seems to me therefore that the appellant cannot be prevented by clause (f) of S. 13 from executing his decree in British India.”
CONCLUSION
It will be seen from the above that even if a judgment or a decree is passed by a foreign Court against an Indian defendant, the judgment or decree may not be enforceable against him due to the operation of S. 13 of CPC. It can be seen that, the plaintiff has to come to the Indian courts to either get the foreign judgment executed under S. 44A or file a fresh suit upon the judgment for its enforcement. Therefore by getting a decree in the foreign Court, the plaintiff is only avoids the inconvenience of leading evidence in the Indian Courts but runs a much bigger risk under S. 13. Therefore it may advisable for a foreign plaintiff to institute claims in India itself in case the defendant is in India. Since internet transactions would involve more of documentary evidence and that comparatively leading of evidence may not be that inconvenient, it may be advisable to avoid the risk under S. 13 and file claims in India itself. Therefore the Analysis of the legal issues involved in enforcement of foreign decrees in India emphasizes the need for the Indian business sectors not to treat the summons received from foreign courts casually and enter appearance and make submissions against the plaint initiated in the foreign courts. Otherwise, to contend at a later stage that the foreign decision/decree is not based on “merit” and does not conform to the provisions of the Indian Civil Procedure Code, may turn out to be too much of a risk and may jeopardize the protective umbrella which the Indian companies are so accustomed to while dealing with litigations in Indian courts.
33
A.I.R 1941 Mad. 387. 14
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1. Takwani C.K., Civil Procedure with Limitations Act,1963, Eastern Book Company,7 th Ed.,2016. 2. Sukumar Ray, The Code of Civil Procedure, Lexis Nexis, 3 rd ed., 2015. 3. Thakkar C.K, Code of Civil Procedure, Eastern Book Company, Vol. I, Ed 2000. 4. Jain M.P., The Code of Civil Procedure, Lexis Nexis, 3 rd Ed 2011. WEBSITES-
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