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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.
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The
author can be reached at: raghav_nliu@legalserviceindia.com /
