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The article/paper
aims to study the binding nature of the foreign judgments i.e.
judgments given by the courts in foreign countries and the scope and
object of section 13 of C.P.C. Also the project describes the
conditions under which the judgments given by any foreign court
creates the rule of estoppel or res judicata.
Introduction
A foreign Court is defined
as a court situate outside India and not established or continued by
the authority of the Central Government. And a Foreign Judgment
means a judgment of a foreign court. . In other words, a foreign
judgment means adjudication by a foreign court upon a matter before
it. Thus judgments delivered by courts in England, France, Germany,
USA, etc. are foreign judgments.
Sections 13 and 14
enact a rule of res judicata in case of
foreign judgments. These provisions embody the principle of private
international law that a judgment delivered by a foreign court of
competent jurisdiction can be enforced by an Indian court and will
operate as res judicata between the parties thereto except in the
cases mentioned in Section 13.
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. 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.
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. Such recognition is accorded
not as an act of courtesy but on considerations of justice, equity
and good conscience. 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."
As has been rightly
observed by a great jurist: "We are not so provincial as to say that
every solution of a problem is wrong because we deal with it
otherwise at home"; and we shall not brush aside foreign judicial
process unless doing so "would violate some fundamental principle of
justice, some prevalent conception of good morals, some deep-rooted
tradition of the common weal."
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 the summons was
served on him;
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.
Binding Nature Of Foreign Judgments:
Principles
The Code of Civil Procedure provides that a
foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties pr between
parties under whom they or any of them claim litigating under the
same title except -
a) Where it has not been pronounced by 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
proceeding 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 proceeding in which the judgment
was obtained or 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
Foreign Judgments When Not Binding: Circumstances:
Sec. 13
Under Sec. 13 of the Code, a foreign judgment
is conclusive and will operate as res
judicata between the parties there to accept in the cases
mentioned therein. In other words, a foreign judgment is not
conclusive as to any matter directly adjudicated upon, if one of the
conditions specified in clauses (a) to (f) of section 13 is
satisfied and it will then be open to a collateral attack . Dicey
rightly states:
"A foreign judgment is conclusive as to any
matter thereby adjudicated upon and can not be impeached for any
error either
(1) Of fact; or
(2) Of law"
In the following
six cases, a foreign judgment shall not be conclusive:
(3)
Foreign not by a competent court;
(4) Foreign judgment not on
merits;
(5) Foreign judgment against international or Indian
law;
(6) Foreign judgment opposed to natural justice;
(7)
Foreign judgment obtained by fraud;
(8) Foreign judgment founded
on a breach of Indian law.
# Foreign Judgment Not By A Competent
Court
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.
The leading case on
the point is Gurdayal Sigh v. Rajah of
Faridkot.
In that case, A
filed a suit against B in the court of the Native State of Faridkot,
claiming Rs. 60,000 alleged to have been misappropriated by B, while
he was in A's service at Faridkot. B did not appear at the hearing,
and an ex parte decree was passed against him. B was a native of
another Native State Jhind. In 1869, he left Jhind and went to
Faridkot to take up service under A. But in 1874, he left A's
service and returned to Jhind. The present suit was filed against
him in 1879; when he neither resided at Faridkot nor was he
domiciled there. On these facts, on general principles of
International Law, the Faridkot court had no jurisdiction to
entertain a suit against B based on a mere personal claim against
him. The decree passed by the Faridkot court in these circumstances
was an absolute nullity. When A sued B in a court in British India,
against B on the judgment of the Faridkot court, the suit was
dismissed on the ground that Faridkot court has no jurisdiction to
entertain the suit. The mere fact that the embezzlement took place
at Faridkot, was not sufficient to give jurisdiction to the Faridkot
court would have had complete jurisdiction to entertain the suit and
to pass a decree against him.
Similarly, a court
has no jurisdiction to pass a decree in respect of immovable
property situated in a foreign State.
# Foreign Judgment Not On Merits
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 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.
# Foreign Judgment Against International Or Indian
Law
A 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 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."
# Foreign Judgments Opposed To Natural
Justice
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 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.
# Foreign Judgment 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 decision was one which should not have been rendered, but it can
be set aside if the court was imposed upon or tricked into giving
the judgment.
In the leading case
of Satya v. Teja Singh , 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 Narsimha Rao v. Venkata Kakshmi , 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 , 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.
# Foreign Judgment Founded On Breach Of Indian
Law
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. 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.
Presumption As To Foreign Judgments: Section
14
Section 14 of the Code declares that the court
shall presume, upon the production of any document purporting to be
a certified copy of a foreign judgment, that such judgment was
pronounced by a court of competent jurisdiction, unless the contrary
appears on the record, or is proved. However, if for admissibility
of such copy any further condition is required to be fulfilled, it
can be admitted in evidence only if that condition is
satisfied.
Thus, in Narsimha Rao v.
Venkata Lakshmi , the Supreme Court held that mere production
of a Photostat copy of a decree of a foreign court is not
sufficient. It is required to be certified by a representative of
the Central Government in America.
Submission To Jurisdiction Of Foreign
Court
It is well established that one of the
principles on which foreign courts are recognized to be
internationally competent is voluntary submission of the party to
the jurisdiction of such foreign court. The reason behind this
principle is that having taken a chance of judgment in his favor by
submitting to the jurisdiction of the court, it is not open to the
party to turn round when the judgment is against him and to contend
that the court had no jurisdiction.
Submission to jurisdiction
of a foreign court may be express or implied. Whether the defendant
has or has not submitted to the jurisdiction of a foreign court is a
question of fact, which must be decided in the light of the facts,
and circumstances of each case.
Conclusiveness Of Foreign Judgment
As
stated above, a foreign judgment is conclusive and will operate as
res judicata between the parties and privies though not strangers.
It is firmly established that a foreign judgment can be examined
from the point of view of competence but not of errors. In
considering whether a judgment of a foreign court is conclusive, the
courts in India will not require whether conclusions recorded by a
foreign court are correct or findings otherwise tenable. In other
words, the court cannot go into the merits of the original claim and
it shall be conclusive as to any matter thereby directly adjudicated
upon between the same parties subject to the exception enumerated in
clauses (a) to (f) of Section 13.
Enforcement Of Foreign Judgments
A
foreign judgment, which is conclusive under Section 13 of the Code,
can be enforced in India in the following ways:
1. By instituting a suit on such foreign
judgment,
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 country. 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.
2. Execution Proceedings
A 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.
The fact that out of six exceptions there 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.
Foreign Awards
Principles laid down in the section do not apply-
It is not open to the party, who is party to the award, to
contend that the award was not given on merits of the case. Say that
if the award was given against the rules of natural justice or it
was fraudulently obtained, the party may not be prevented from
putting forward those contentions. But it is difficult to accept the
view that because on a foreign judgment it is open to a party to
contend that it was not given on the merits of the case, it is
equally open to a party who is resisting the suit on the award to
contend that the award was not given on the merits of the
case.
Only if the award
given in a foreign country is reinforced by a decree of the Court of
that country the courts will be bound to take notice of it but
without such a decree reinforcing such award, the award must be
deemed to be non-existent.
Conclusion
Thus a bare reading of
section suggests that a foreign judgment would be conclusive as to
any matter thereby directly adjudicated upon between the same
parties. Hence we can conclude that a judgment of a foreign Court
creates estoppel or res judicata between the same parties, provided
such judgment is not subject to attack under any of the clauses (a)
to (f) of Section 13 of the Code. If any claim is made by any party
and subsequently abandoned at the trial of a suit and if the decree
in that suit necessarily implies that claim has not met with
acceptance at the hands of the court, then the court must be deemed
to have directly adjudicated against it.
author's contact information!Authored by Raghvendra
Singh Raghuvanshi can be reached at : raghav_nliu@legalserviceindia.com
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