This article has been written by Deepanshu Agarwal pursuing LLB from NUJS, Kolkata and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Table of Contents
Introduction
Section 13 of the Code of Civil Procedure, 1908, deals with the extent of conclusiveness of foreign judgments in India. By foreign judgments, we imply that the judgments that are pronounced by a foreign court, i.e. a court situated outside the territory of India over which the central govt. has no authority. As per the wordings of Section 13, a foreign judgment shall be conclusive, meaning final and binding, as to any matter directly adjudicated upon between the same parties or between parties under whom or any of them claim to be litigated under the same title. However, this conclusiveness of a foreign judgment has 6 exceptions mentioned in clauses (a) to (f) to that section.
Hence, to be deemed of a binding character, the judgment will need to pass through the 6 tests mentioned as exceptions, i.e. it must have been pronounced by a court of competent jurisdiction, it shall have been delivered as per merits of the case, it shall be founded on a correct view of International law or Indian law wherever applicable, proceedings in which it was delivered must have been in conscience with the principles of natural justice, it shall not have been obtained by fraud and there should have been no breach of any Indian law which is in force at the time. A foreign judgment will act res judicata if it successfully passes through all 6 tests laid down as exceptions to Section 13 and subject to other conditions laid down in Section 11 of the Code. It is also very important to note that the rules laid down under Section 13 are rules of substantive laws and not only procedural rules. This section embodies the principles of the private international law that a judgment pronounced by a foreign court of competence can be enforced by an Indian court and will operate as res judicata.
This article restricts itself to a detailed analysis of Clause (c) of this section in the Code. This clause as one of the exceptions states – “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”. It means that the foreign judgment based upon a wrong view of an International Law or a denial to recognize the Indian law, when it is applicable is not conclusive. However, the mistake must be apparent on the face of it. If a specific judgment has a glaring incorrect view of international law or does not recognize the Indian laws, even when they were directly applicable, then the judgment would not be binding and section 13 (c) would be satisfied.
This article seeks to analyze the scope of this particular clause in the section with reference to Indian cases where it has been contended upon by the parties or refereed upon in the judgment.
Analysis
The Punjab and Haryana High Court in the case of Firm Gauri Lal Gurdev Das v. Jugal Kishore Sharma observed that the provisions as enumerated under Section 13 of CPC are applicable both to suits and execution proceedings. Even after parties have proved all elements necessary to apply Section 13 and make a judgment conclusive, there still exist exceptions where it won’t be deemed so. A foreign judgment isn’t conclusive if any of the following two conditions as laid down in Section 13 (c) – (a) if the proceedings are based on wrong or incorrect view of international law, or (b) the foreign court refuses to recognize the law of land in India in such it is applicable, are satisfied.
We can better understand the applicability of the clause by understanding the facts by a simple example. Let us assume that there was a contract entered into in India, however, some dispute arose in the performance of the contract. Consequently, a suit was filed in England on the basis of that contract and the English Court applied the English Law while adjudicating. What would be the effect of that judgment by the English Court?
The judgement would be deemed non-conclusive. Personal contract disputes that extend beyond borders are governed by principles of Private International Law and it is a prominent feature of private international law that only the laws of the land where the contract was formed will be applicable to determine rights and liabilities to the parties to the contract. This is as per the application of the maxim of lex loci contractus. A similar set of facts was presented before the Supreme Court of India in the case of International Woolen Mills v Standard Wool (UK) Ltd. The judgment by the English Court, in this case, was held by the Supreme Court to be based on an incorrect view of International law. The court rightly applied the 1st condition as mentioned in clause (c) to section 13 of the CPC to render the foreign court judgement non-conclusive. Thus, as rightly observed by Supreme Court in the case of Narsimha Rao vs. Venkata Lakshmi, when a foreign judgment is founded on the jurisdiction, a claim or on a ground, not acknowledged by Indian or general International law, then such a judgment will always be deemed unenforceable as it will be in defiance of the prevailing law.
There have been many similar cases in India where the judgements given by foreign courts were deemed unenforceable India. In the case of I&G Investment Trust v. Raja of Khalikhote, the Calcutta High Court held that a judgment delivered in England was based on an incorrect view of Foreign law when the English court decreed a claim on debenture payable in the capital city of London. This decree was contrary to the provisions of the Orissa Money Lenders Act and hence was not applicable in India. Similarly, the judgment pronounced by the Malaysian court where it decreed one-third of the estate of the Muslim Husband in favour of his widow was not enforced in India as per the decision of Madras High Court because under Indian Law share of the widow can only be One-Eighth.
Similarly, the Punjab and Haryana HC while deciding on a divorce case of an NRI couple ruled that any judgment ruled by a foreign court would not be considered conclusive in relation to the exact same matrimonial dispute lis pendens before a domestic court. The court rightly held that the married people who migrated after solemnizing their marriage in India as per the Indian Laws would only be governed by such laws and any decree pronounced by the foreign court in relation to the matrimonial dispute must be in accordance with the Indian Laws to make it binding. However, in this case, the UK court passed a divorce order on grounds of irretrievable breakdown of marriage but since such a ground isn’t available as per Hindu Marriage Act, the act as per which marriage took place, the divorce decree will neither be binding on Indian courts nor will it be recognized by it. Hence, in this case, too, the conditions required to be satisfied for applicability of the exception mentioned in 13 (C) were fulfilled and the decree by the UK court was ruled not to be conclusive.
However, there have also been a few cases where the foreign judgments were held to be conclusive and despite the contention by the parties, Section 13(c) was held to be inapplicable. The verdict in the case of Anoop Beniwal vs. Jagbir Singh Beniwal is a classic case study in this category. In this case, the plaintiff had filed for a divorce decree in England on the basis of the Matrimonial Causes Act 1973, the English Law on the subject. The English court duly granted the divorce under Section 1(2) (b) of the act which mentions the behaviour of the respondent in such a way that petitioner cannot be reasonably expected to stay with the respondent as one of the grounds for irretrievable breakdown of marriage and consequently divorce. However, when the couple came to India for enforcement of the decree, the respondent claimed that there was the refusal by the English Court to recognize Indian law, which has no such ground for divorce and hence the verdict should not be rendered conclusive. However, the Indian court deemed cruelty as defined under the Hindu Marriage Act, almost similar to the ground of divorce under English law. In fact, it was held that the English Statute used a milder expression of the ground of cruelty and hence the verdict was enforceable in India and there was no violation of the Indian law.
Likewise in the case of Sundaram Pillai v. Kandaswami Pillai, the foreign judgment was held to be enforceable despite the defendant’s plea that the judgment of the foreign court was obtained in breach of the Indian Contract Act as one party, though above the age of 18 was a minor by virtue of appointment of guardian under the Guardians and Wards Act 1890 and contract with a minor is void as per Indian law. However, the court held that the plaintiff’s claim was also based on moners due from the undivided Joint Family and claim for the supply of necessities and hence, a part claim under ICA which was not regarding breach of the law. Thus, as the decree sustained a claim which was not wholly based on breach of the Indian Contract Act, the appellant was allowed from executing the decree in India.
Thus, from the above cases concerning Section 13(c), it can be safely concluded that the foreign judgment will only not be conclusive if it appears on the face of the proceedings. This is different from the law prevalent in England where mere mistake as to English Law does not vitiate a foreign judgment notwithstanding that it may appear on the face of the proceedings (see Godard vs. Gray). In India, a judgment contrary to the established view of International law or an explicit or apparent refusal to recognize the Indian Law in cases it is applicable would not be binding. That is to say that the court shall for example in Divorce proceedings check that whether local laws must be applied or recognized as the marriage was solemnized in India or whether the jurisdiction of a foreign court by virtue of domicile would be a sufficient answer to such a matter.
Enforceability and recognition of a foreign judgment in India
Section 44 of the Code explicitly states that if a decree has to be executed in India, then the country which pronounced that judgment must be a reciprocating country. There is a list of 11 countries that have been classified as reciprocating countries under Explanation 1 of Section 44-A. As per this section, a decree passed by a superior court in any of the reciprocating countries is as executable as a decree passed by a domestic court. It therefore can be inferred that to be influenced by the principles of Section 13, the state needs to be a reciprocating state in the first place. However, if the decree fails to pass through the tests laid down as exceptions to Section 13, then also it cannot be executed. Also, Section 11 regarding Res Judicata must be completely followed and hence a foreign judgment would not be entertained if there are conflicting Indian judgments on the same issue between the same parties.
Difference between the Scope of 13(c) and 13(f)
The exceptions laid down in Section 13 (c) which has already been discussed throughout and Section 13(f) which deals with the sustenance of a claim founded on a breach of any Indian law in force often overlap and hence lead to confusion. There have been many cases like the above discussed Orissa Money lender’s Act case and the Pillai v. Pillai case, where both of these provisions were invoked. However, it is important to note that 13 (f) can only apply if the order, decree or judgment is founded on the cause of action that has either originated in India or is closely linked to India, whereas for 13(c) to be applicable, the sole condition required to be satisfied that judgment on the face of proceedings appears to be founded on an incorrect view of private international law or fails to recognize Indian law. A foreign judgment for a gambling debt would not be enforced in India as gambling is illegal as per Indian and hence it would be deemed non-conclusive under 13(f). Similarly in one case as referred to in Sheesh Subhash Hegde vs. Darshana Saeesh Hegde, it was held that a divorce decree of Roman Catholics married in Goa, which was deemed indissoluble under the Goan law would not be enforced in India as it was founded on a breach of Indian law.
Conclusion
Thus, from the above analysis, it can be safely concluded that a judgment even by reciprocating countries would not be conclusive in India if it attracts any of the 6 exceptions as enumerated in Section 13 of the code. Exception 3rd to that section, i.e. 13(C) lays down the strict conditions which are necessary to make foreign judgment conclusive. The presence of that section also ensures that general common principles of Private International Law are not ignored and the correct view as per International Law is taken into account. Due to this section, a party to the suit will be assured that blatantly incorrect judgment which is not in accordance with Indian law will not be enforceable and he can any time question its validity in the Indian courts. This section not only allows a plaintiff to avoid the inconvenience of presenting evidence in Indian courts which solve disputes over the years but also tries to make sure the verdict won’t be much different if Indian Law is recognised. Though the tendency to challenge the foreign judgments in India as per ground laid down in 13(c) also provides that the courts which are already overburdened will continue to be burdened with futile cases, however, this can be avoided if the foreign court of the reciprocating country simply considers the Indian law while delivering judgment so that there is less scope of challenge by the party who loses the case in a foreign court.
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