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Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?
The recognition and enforcement of foreign judgments and decrees in India are governed by Section 44-A, read with Section 13 of the Code of Civil Procedure 1908.
A foreign judgment which is conclusive under Section 13 of the code can be enforced by:
- instituting execution proceedings under Section 44-A, read with Section 13 of the code in the case of ‘reciprocating territories’ (defined below); or
- instituting a civil suit on the judgment in the case of a non-reciprocating country.
Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?
While India is not a party to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, it has entered into bilateral treaties with various states regarding cooperation and reciprocity in terms of enforcement of foreign judgments and decrees.
Section 44A of the code defines ‘reciprocating territory’ to mean a country which the central government has notified as such in the Official Gazette. Presently, the countries notified as reciprocating territories are the United Kingdom, Aden, Fiji, Singapore, the United Arab Emirates, Malaysia, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue) and the Trust Territories of Western Samoa, Hong Kong, Papua and New Guinea and Bangladesh.
In addition, India has entered into bilateral treaties with the following countries; however, they are not yet notified as reciprocating territories: Afghanistan, Azerbaijan, Bahrain, Bulgaria, France, Kazakhstan, Mongolia, Turkey and Ukraine. Pending notification as reciprocating territories, the enforcement of judgments and decrees from courts in these jurisdictions follow the same process as non-reciprocating territories.
Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?
As per Section 44-A of the code, the competent court for enforcement of a foreign judgment is the district court with jurisdiction to entertain the matter in dispute or a high court exercising ordinary original civil jurisdiction on the subject matter of the dispute.
In case of a judgment from a non-reciprocating territory, a civil suit on the foreign judgment must be filed before the competent court.
Distinction between recognition and enforcement
Is there a legal distinction between the recognition and enforcement of a judgment?
Yes. Section 13 of the code provides the criteria for recognition of a foreign judgment and is a pre-condition to any enforcement proceedings. Unless a foreign judgment passes the conclusiveness test under Section 13 of the Code of Civil Procedures, it cannot be enforced. On the other hand, enforcement is dealt with under Section 44A of the code in respect of foreign judgments emanating from both reciprocating territories and non-reciprocating territories.
Ease of enforcement
In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?
The ease of execution depends on whether the foreign judgment is from a reciprocating territory. In terms of Section 44A of the code, judgment from a reciprocating territory should be executed as if it were passed by a district court in India. On the other hand, executing a judgment from a non-reciprocating territory requires a civil suit on the foreign judgment to be filed before the competent court. Therefore, execution of a judgment from a reciprocating territory is comparatively more efficient.
Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?
The last formal reform suggestion was passed in 2009 through the Law Commission of India’s 219th report entitled “Need for Family Law Legislations for Non-resident Indians”, which specifically dealt with foreign judgments relating to divorce and suggested reforms accordingly. However, no specific reform proposal relating to enforcement and recognition of foreign judgments or decrees is underway.
Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
13 of the Code of Civil Procedure 1908 is an important criterion.
The Indian courts have held that interlocutory orders on costs, jurisdiction, divorce decrees, monetary judgments, mandatory injunctions and anti-suit injunctions are enforceable in India.
The courts have also held that ex parte decisions are not unenforceable per se. If the entire established procedure in trial is followed, the judgment is based on the merits of the dispute and the judgment holder was directed to prove its case even in the absence of a defence by the defendant; such an ex parte decision will be enforceable.
On the other hand, default judgments, judgments from summary or special procedures, formal judgments, judgments imposing punitive damages and penalties or quasi-judicial orders have been held to be unenforceable in India. There are conflicting views between different high courts on whether consent and compromise decrees are enforceable.
How are foreign judgments subject to appeal treated?
A foreign judgment must be conclusive in order to be rendered enforceable. If an appeal is pending against the judgment in the foreign court of appeal, it will not be deemed final and conclusive for the purposes of enforcement in India. The judgment must have the effect of res judicata in order to become final and conclusive. In addition, not all judgments from reciprocating territories are enforceable under Section 44-A of the code. Only judgments rendered by superior courts of reciprocating territories as notified by the Indian government in the Official Gazette are enforceable under Section 44A of the code.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
The formal and documentary requirements for enforcement of foreign judgments and decrees from reciprocating territories are provided in Section 44A of the code:
- The judgment or decree must be from a superior court of a reciprocating territory.
- The decree must be filed in the district court or a high court exercising original civil jurisdiction.
- A certified copy of the decree must be filed for execution.
- A certificate from the foreign court stating the extent to which the decree has already been satisfied or adjusted (if any satisfaction has been achieved at all) must be filed.
In case of a non-reciprocating territory, the judgment holder must file a civil suit on the foreign judgment or decree and annex a certified copy of the judgment or decree.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
Section 44A of the code provides that the court can refuse the execution of the foreign judgment from a reciprocating territory if it is inconclusive in terms of Section 13.
In terms of Section 13, a foreign judgment is considered inconclusive where it:
- has not been pronounced by a court of competent jurisdiction;
- has not been given on the merits of the case;
- is against international law or based on non-recognition of Indian law;
- is granted in proceedings opposed to natural justice;
- has been obtained by fraud; or
- is founded on breach of Indian law.
What is the limitation period for enforcement of a foreign judgment?
The Code of Civil Procedure provides that foreign judgments and decrees from reciprocating territories can be executed in India as decrees passed by the Indian courts; thus, the Limitation Act 1963 applies in equal measure. Accordingly, the limitation period is as follows:
- for the execution of a decree granting a mandatory injunction, three years from the date of the decree or the date fixed for performance; and
- for the execution of any other decree, 12 years from the day on which 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 perpetual injunction will not be subject to any period of limitation).
Since the remedy for a judgment holder from a non-reciprocating territory is to file a civil suit before the competent court in India, under the Limitation Act, judgment holders must file a suit within three years of the date of the foreign judgment or decree.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
The enforcement of the foreign judgment or decree can be refused if it falls within one of the exceptions listed in Section 13 of the Code of Civil Procedure or if it is barred by limitation. Once the judgment is recognised under Section 13, subject to the procedural requirements under Section 44A (listed above) being met, it will be enforced.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
Reasonable notice is an essential element of the principle of natural justice and, under Section 13(d) of the Code of Civil Procedure, the Indian courts will consider the question of service of process to see whether reasonable notice was given to the judgment debtor. However, there are no specified criteria to determine reasonableness, and thus this is a fact-specific question. A defendant must be served with reasonable notice of the original action. If the notice was not served or was unreasonable, the judgment will not be ‘conclusive’ under the definition set out in Section 13 of the Code of Civil Procedure.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
The public policy issues in relation to the enforceability of foreign judgments or decrees are contained in Section 13 of the Code of Civil Procedure and include considerations of whether the judgment was:
- passed in disregard of Indian law;
- based on an incorrect view of international law;
- opposed to the principle of natural justice; or
- in breach of the law in force in India.
Recently, in Hindupur v Bellur (2015 SCC OnLine Del 7484) the Delhi High Court reaffirmed that Section 13 of the Code of Civil Procedure states that a foreign judgment is recognised in India only if it conforms with public policy (ie, good conscience and equity as reflected by the grounds contained in Section 13 of the Code of Civil Procedure).
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
The Indian courts are likely to examine issues of personal jurisdiction and subject-matter jurisdiction to determine a foreign court’s competency to render the impugned judgment or decree.
In its celebrated judgment in Chettyar v Pillay (AIR 1914 Mad 556), the Madras High Court laid down the circumstances under which competency is to be determined. In essence, competency will be based on whether the defendant:
- is a subject of the country in which the judgment was passed;
- is a resident of the country in which the action was commenced;
- has in a previous case filed a suit in the same forum;
- has voluntarily appeared; and
- has contracted to submit him or herself to the jurisdiction of the foreign court.
Further, it is settled law that a foreign court cannot pass a judgment in relation to any assets (subject matter) situated outside its territorial jurisdiction, and the Indian courts are consistent in following the same.
Under Section 14 of the Code of Civil Procedure, there is a presumption that the foreign judgment or decree is rendered by a competent court and the burden is on the defendant to argue and prove otherwise based on the grounds listed above.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
The Indian courts follow the principle of comity of courts. Therefore, in case of concurrent proceedings, it is likely that the courts will proceed with the execution of the foreign judgment or decree from a superior court of a reciprocating territory, provided that it does not fall within the exceptions under Section 13 of the Code of Civil Procedure.
Further, in case of conflicting judgments or decrees, the courts are likely to rely on the doctrine of res judicata (Section 10 of the code) and proceed with the execution of the foreign judgment or decree which was rendered prior in time and has res judicata effect on the dispute between the parties, provided that this prior judgment meets the requirements set out in Section 13 of the code.
This position also applies to judgments and decrees from non-reciprocating territories.
What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?
Judgment debtors can claim that the foreign decree or judgment is inconclusive under Section 13 of the Code of Civil Procedure as a defence.
What injunctive relief is available to defendants (eg, anti-suit injunctions)?
While the judgment holder cannot be prevented from approaching the court to seek execution, once the suit or execution proceedings are filed, the judgment debtor can seek injunctive orders against the proceedings until its objections to the enforcement in terms of Section 13 of the Code of Civil Procedure are decided.
Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
To enforce a foreign judgment or decree from a reciprocating territory, the decree holder must file an application for the execution of the judgment or decree in the competent Indian court (ie, the relevant district court). A certified copy of the decree and a certificate from the superior court of the foreign country stating the amount, if any, that has been satisfied under the decree must also be submitted.
Following the application, the executing court will call on the party against which execution is sought to show cause against the execution of the decree. In the event that the person against which execution is sought objects to the execution, the court will pronounce its order after hearing the objections.
The various stages in an execution proceeding instituted in India in order to enforce a decree under Section 44A of the Code of Civil Procedure are as follows:
- Application for execution – the decree holder must file an application for execution of the decree before the competent court.
- Notice to show cause – the court will then issue notice to the person against which execution is sought, requiring such person to show cause as to why the decree should not be executed.
- No contest – if the person against which the decree is to be executed does not appear or show cause as to why the decree should not be executed, the court will order the decree to be executed.
- Where the defendant contests under Section 44A, read with Section 13 of the Code of Civil Procedure, it can argue why the decree should not be enforced. In this case, the court will consider the application and determine whether the foreign judgment falls under any of the exceptions under Section 13. While this order is not appealable, a review or revision may be sought.
- Court issues process – if there is no contest or if the court holds that none of the exceptions under Section 13 apply, it will issue a process and appoint an appropriate officer, including a judge, to execute the decree.
- Once the process is issued, the decree holder can apply to the court to provide directions to the judgment debtor, instructing it to disclose any assets and liabilities. If these assets are disclosed, the court will proceed with the attachment and sale of such assets.
In case of a non-reciprocating territory, the judgment holder must file a suit on the foreign judgment or decree. Only once the suit is allowed can it be executed as a domestic decree in terms of Order 21 of the Code of Civil Procedure.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
In the event that the enforcement of a foreign judgment or decree is not contested, a reasonable time limit for satisfaction of the judgment or decree is between one to two years. If, on the other hand, enforcement of the foreign judgment or decree is contested under any of the grounds mentioned in Section 13, it could take anywhere between three and four years for recognition.
What fees apply to applications for recognition and enforcement of foreign judgments?
Since a foreign judgment or decree from a reciprocating territory will be executed as a domestic decree, the party seeking enforcement must pay only a nominal fixed court fee, which varies from state to state.
However, in the case of a non-reciprocating territory, a suit must be filed and therefore an ad valorem fee as per the claim amount must be deposited with the court.
Must the applicant for recognition and enforcement provide security for costs?
No. There is no such default requirement for the applicant to provide security for costs.
Are decisions on recognition and enforcement subject to appeal?
Yes. A court decision on the conclusiveness of a foreign judgment or decree is subject to review and appeal under the Code of Civil Procedure. Further, if these procedures fail to yield a result for the defendant, the defendant can file a special leave petition before the Supreme Court against the orders of the subordinate courts.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
The courts are likely to grant interest from the date of the foreign judgment or decree until the day on which payment is finally made. Further, the Supreme Court has held that the date of the foreign judgment or decree should be used as the relevant date for currency conversion to Indian rupees.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
In practice, a foreign decree will be enforced only against the party against which the judgment or decree has been rendered. The courts are unlikely to enforce a judgment or decree against a party other than the judgment debtor or any other party that has not been represented in the proceedings before the foreign court. This is because it would be contrary to the principles of natural justice and therefore render the judgment inconclusive under Section 13(d). However, under Order 21, Rules 46-A to 46-I, the Code of Civil Procedure provides for the option of a ‘garnishee order’, under which the court can attach money or goods belonging to the defendant to a third person.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
Yes. Applying the principle of severability, the Indian courts can enforce part of a foreign judgment or decree. This may be feasible when part of the judgment or decree may already have been satisfied or where part of the judgment or decree is rendered unenforceable by the court.