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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.
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