ENFORCEMENT OF FOREIGN JUDGEMENTS IN INDIA

Sreeja Nair
Advocate & IP Attorney

Savitha Krishnan
Advocate - Associate

Ashwati
Legal

INTRODUCTION

In the present era where globalization and liberalization are at its zenith, the trans-national movement of individuals are on the ascent. The rapid evolution of the modern society brings with it a plethora of complicated situations which in turn entangles the individuals in to varied tricky legal battles that ends up to be wheels within wheels. These emerging issues are prevalent in all aspects of life and the matrimonial disputes are no exception to this. With the expanding number of outside relationships and separations, a critical ascent in marital questions is recurring. Advancement in the field of data and innovation, particularly the internet and online transactions have brought to the fore new issues and challenges. Due to these advancements, it isn't uncommon to go over situations where a couple dwell in different nations, have a residence in a third nation and their youngsters live in a fourth nation. The looming legal issues on “jurisdiction” as regards transactions over the internet entwines the legal aspects involved in the execution/enforcement of foreign decrees. Even after exercise of jurisdiction, the Courts in some cases are unable to help the plaintiff in getting relief especially in cases where the local laws of the country concerned have certain restrictions for the execution/enforcement of foreign judgments in the country. In the Indian context, execution of decrees, whether foreign or domestic, is governed by the provisions of the Code of Civil Procedure, 1908.

THE CODE OF CIVIL PROCEDURE 1908 AND ENFORCEMENT OF FOREIGN JUDGMENTS :

The Indian Code of Civil Procedure, 1908 under its section 44A read along with section 13 lays down the principles for recognition and enforcement of the foreign judgements. According to section 2(6) of CPC, “foreign judgement” are those which are passed by a foreign court, where “foreign court” is a court situated outside the territory of India having no authority by the central government, as per section 2(5).

SOURCES OF LAW REGARDNG FOREIGN JUDGMENTS :

The primary sources of law in relation to enforcement of foreign judgments in India are Firstly, legislation enacted by Parliament (ie, the Code): section 44A of the Code illustrates a legal fiction whereby a judgment rendered by a superior court of a reciprocating territory (as notified by the central government in the Official Gazette) is enforced in India as if it were a decree passed by the Indian district courts. However, a judgment emanating from a non-reciprocating territory cannot be directly enforced in the same manner and a new suit must be filed for its enforcement in which such a judgment holds only evidentiary value. Furthermore, it may be noted that both the aforementioned categories of judgments are required to comply with the conditions elucidated in section 13 of the Code, which provides for a foreign judgment to be conclusive in nature. However, section 14 of the Code raises a presumption in favour of the competency of jurisdiction of the foreign court rendering the concerning judgment; Secondly, bilateral treaties with the reciprocating countries with regard to recognition and enforcement of foreign judgments to which India is a party; and judicial precedents: the landmark case of Moloji Nar Singh Rao v Shankar Saran reads that a foreign judgment not emanating from a superior court of a reciprocating territory cannot be executed in India without the filing of a new suit in which the said judgment has only evidentiary value.

OVERVIEW OF SECTION 44A OF THE CIVIL PROCEDURE CODE:

Section 44 A of the civil procedure code lays down the procedure by which a judgement pronounced by the “superior courts” of the “reciprocating territory” can be enforced by the Indian Courts. Explanation 1 to section 44A defines the above two terms as;

"Reciprocating territory" means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section;

"superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification.

By the virtue of this section, the judgement or decree passed by the superior courts shall be executed as if it were passed by the Indian Courts itself, just by filing an execution application annexed together with an original certified copy of the decree and certificate from the superior court stating the extent to which the degree has been satisfied and adjusted. The competent court to enforce such a decree or judgement is the District Courts with jurisdiction to entertain the matters in dispute or High Courts with original civil jurisdiction on that subject matter. India not being a party to the Convention on the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters, enters into bilateral treaties with other states, regarding the reciprocity of the judgements and decrees.

JUDGEMENTS RENDERED BY RECIPROCATING TERRITORIES:

The list of notified reciprocating territories of India consists of United Kingdom, Fiji, Aden, Singapore, Malaysia, Trinidad &Tobago, New Zealand,the Cook Islands (including Niue) and the Trust Territories of Western Samoa, Hong Kong, Papua and New Guinea, Bangladesh. On January 17, 2020 the Government of India by a notification declared United Arab Emirates (“UAE”) as reciprocating territory for the purpose of enforcing foreign civil decrees in India. Following the notification, decrees passed by the civil courts in UAE are now executable in India as if they were passed in India.

JUDGEMENTS RENDERED BY NON-RECIPROCATING TERRITORIES:

For the judgements pronounced by courts of non-reciprocating territories, a suit shall be filed in the competent Indian Court on the foreign judgement, or on the original cause of action or both. This suit has to be filed within three years from the date of the judgement/decree. According to section 14, the court will be of the presumption that the foreign judgement produced is pronounced by a court of competent jurisdiction, which is always rebuttable. Such a foreign judgement only holds evidentiary value in the Indian Courts. Now the resulting domestic decree can be executed, provided the foreign decree thus submitted shall pass the test laid down by section 13 of CPC. Section 13 lays down the test for conclusiveness of the foreign judgement, where a foreign judgement is conclusive except:

A COMPARISION BETWEEN THE 1986 AND 2019 VERSIONS OF THE CONSUMER PROTECTION ACT:

The Consumer Protection Act, 2019 was enacted by the Indian parliament which came into force on 9th August 2019, repealing and replacing The Consumer Protection Act of 1986. The new Act proposes a huge number of measures and fixes the current standards to the existing consumer rights. Lets have a look at the changes that are incorporated in the revised Act which is segregated into various heads for easy understanding.

where it has not been pronounced by a Court of competent jurisdiction;
where it has not been given on the merits of the case;
where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of [India] in cases in which such law is applicable;
where the proceedings in which the judgment was obtained are opposed to natural justice;
where it has been obtained by fraud;
where it sustains a claim founded on a breach of any law in force in India. If any judgement does not fulfil the criteria laid under this section such judgement would not be enforceable by the Indian Courts.

FOREIGN JUDGEMENTS IN MATRIMONIAL DISPUTES:

In India, the law of marriage is an individual law. At the end of the day, the overseeing law of marriage in India isn't the Indian law or the State law yet the law of the strict network to which the gatherings have a place with no bearing as to residence or nationality. The guidelines of international private law as applied right now are not classified and are dispersed in various establishments, for example, the Code of Civil Procedure, The Special Marriage Act, The Foreign Marriage Act, The Indian Divorce Act, The Indian Succession Act, and so on. Additionally, a few standards have been advanced by the Indian courts throughout the years however their general way to deal with the matrimonial disputes with foreign components has been profoundly affected by the English guidelines of contention of laws, regardless of whether they be the precedent-based law rules or the statutory principles. Sometimes, Indian courts have attempted to create rules identifying with the acknowledgement of remote decisions in wedding causes by receiving inventive translations of the rule laws. Marriage between a non-inhabitant Indian and an Indian young lady is one such tricky region.

In the case of Smt. Shilpa Sachdev vs Shri. Anand Sachdev, it was observed by the Bombay High Court that a foreign court doesn’t have the jurisdiction to decide the matrimonial matters of a couple governed by the Hindu Marriage Act, having Indian domicile even if the parties are residing in the foreign nation. In the said case the parties were Indian nationals who were governed in the matters of marriage and divorce by the provisions of Hindu Marriage Act, 1955. The court set aside the Dubai court’s judgement granting the couple divorce on the ground that the Dubai court lacked jurisdiction and hence the judgement would not be binding and enforceable in India.

In Y. Narasimha Rao v. Y. Venkata Lakshmi, the Supreme Court gave few guidelines regarding the applicability of foreign judgements in India regarding matrimonial matters. These guidelines are:

Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.
It was held that the decision must be given on the “merits” of the case i.e.:(1) The ground of divorce in the decision of the foreign court should be a ground available under the Hindu Marriage Act, 1955. (2) The decision should be a result of the contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.
The principles of natural justice should have been followed, that is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play.
The decree should not have been attained by fraud.

The laws on this matter have hardly gone any changes in the last decades since the above judgement was pronounced.

In Satya v. Teja Singh, when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, the respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.

In Rupak Rathi vs Anita Chaudhary, the Punjab and Haryana High Court ruled that if a judgement is passed by any foreign nation, on any pending matrimonial matter in the Indian Court, then such a foreign judgement would not be considered as conclusive. The court also held that a couple married under Indian laws would carry their personal laws to foreign nations as well when they migrate, and the matrimonial decree passed by the foreign nation would only be binding, provided they lie within the ambit of the Hindu Marriage Act (HMA). The court dismissed the petition filed by Rupak Rathi challenging the divorce petition filed by Anita Chaudhary on the ground that they were already divorced by the UK court under “irretrievable breakdown” of marriage. The court held that since the irretrievable breakdown of marriage as a ground of divorce is not available under the Hindu Marriage Act (HMA), hence the divorce decree would neither be recognized nor enforced in India.

Comity of courts being one the principles followed by the Indian Courts, therefore in the scenarios of concurrent proceedings, the Indian Courts are likely to go with the proceedings of the superior courts of the foreign nations, provided that the judgement doesn’t fall under the exceptions laid down under section 13 of CPC. Also, in the case of conflicting judgements, the courts are bend on following the principles of res judicata under section 10 of the code.

Even though the executability of foreign judgements is looked into under section 44A of CPC in general, but it can be seen that when it comes to specific laws i.e. the Hindu Marriage Act or issues on child custody this section seems to have very little applicability. The specific Acts have overbearing effects on this section. This is clear from sub-section (3) of Section 44-A which makes it clear that this is subject to the decree falling in any of the exceptions contained in Section 13 CPC.

LIMITATION :

In the case of a foreign judgments the Limitation Act 1963 prescribes the time limit for execution of a decree and for filing of a suit. As per the provisions of the statute of limitation,: • three years in the case of a decree granting a mandatory injunction commencing from the date of the decree or where a date is fixed for performance; and • 12 years for execution of any other decree commencing from the date when the decree becomes enforceable or where the decree directs any payment of money or the delivery of any property to be made at a certain date or in a recurring period, when default in making the payment or delivery in respect of which execution is sought, takes place (provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of Limitation).

INJUNCTIVE RELIEF:

Enforcement of judgments from reciprocating territories being executable in India as domestic decrees cannot be challenged by an injunction. Such enforcement may be challenged, however, by way of an appeal or by an application for stay of execution as laid down under the provisions of the Code. Judgments from non-reciprocating territories are enforceable by the filing of a new suit; injunctive relief cannot be obtained against the filing of the suit.

CURRENCY,INTEREST,COSTS:

The landmark judgment of the Supreme Court of India in Forasol v Oil & Natural Gas Commission has placed reliance on the contract between international parties to determine the currency in which damages are to be paid, in concurrence with the international principle of conflict of laws. It was held that as a practice to be followed by the judiciary, the plaintiff may be allowed to claim the damages either in Indian currency at the conversion rate prevailing on the date when the decree or foreign judgment is delivered or in the foreign currency only upon an authorisation by the Foreign Exchange Department in this regard.

ENFORCEMENT:

The Code permits enforcement of a recognised foreign judgment from a superior court of a reciprocating territory in the same manner as a decree passed by a domestic district court. Section 51 of the Code will then apply whereby the court may order measures such as attachment and sale of property or attachment without sale, or delivery of property specifically decreed, and in some cases arrest (if needed) in enforcement of a decree. However, for enforcement of judgments from non-reciprocating territories ,the Code does not permit direct enforcement of judgments without the filing of a new civil suit in which the said judgment only has evidentiary value.

DRAWBACKS :

Recognition and enforcement are accorded only to judgments from the few reciprocating territories with which India has signed reciprocal agreements and not to judgments from any other jurisdiction. Further, foreign judgments that are inconclusive under section 13 of the Code, even if they are from reciprocating territories, will not be enforced in India.

CONCLUSION:

It is crystal clear that even in certain cases 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 the Indian citizen as S. 13 of Code of Civil Procedure comes in to action. , 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 depending whether the country involved is a reciprocating territory or a Non-reciprocating territory. Therefore by getting a decree in the foreign Court, the plaintiff is only avoiding the inconvenience of leading evidence in the Indian Courts but runs a much bigger risk under S. 13. Therefore it may be advisable for a foreign plaintiff to institute claims in India in case the defendant is in India to avoid the risk under S. 13 and thus file claims in India itself to avoid further legal entanglements.