LEGALITY OF FOREIGN JUDGMENTS

INTRODUCTION

A foreign court is described as a court outside of India that has not been set up or continued by the central government authority. So a FOREIGN JUDGMENT means an international court decision. In other words, an international decision requires adjudication of a case before it by an international judge. Therefore, decisions handed down by courts in England, France, Germany, the USA, and so on are international decisions. Sections 13 and 14 establish a res judicata law in the case of international decisions.

The objective of the study is to analyze the contractual essence of foreign judgments, i.e. judgments handed down by courts in foreign countries and the scope and intent of section 13and 14 of C.P.C. The project also defines the circumstances under which judgments handed down by any foreign court impose the law of estoppel, or res judicata.

NATURE AND SCOPE

Section 13 emphasizes the concept of res judicata in foreign judgments under the Code of Civil Procedure, 1908. Such clause reflects the idea of private international law that a judgment can be applied in India issued by a foreign court of competent jurisdiction. The provision set down in section 13 is substantive law and not simply a rule of law. The section is not restricted to plaintiffs in its application. A defendant is fully entitled based on of a foreign judgment to have the plaintiff not sued.

OBJECT

A foreign court’s decision is applied under the premise that moral responsibility exists to fulfill the argument when a court with competent authority has adjudicated on an argument. Every State’s principles of private international law must vary in the very nature of events, but such laws are accepted as common to democratic jurisdictions by the amicability of nations. Such universal laws have been implemented as part of each State’s legal system to adjudicate cases concerning a foreign dimension and to make decisions in foreign courts in other matters, whether as a result of international treaties. This acknowledgment is given based on of principles of law, equity, and good faith, not as an act of courtesy. When deciding our conceptions of justice and public policy, knowledge of international law when concurrent jurisdiction will be valuable guidance. We are autonomous within our jurisdiction but “taking international rule into account is not derogation from sovereignty.”¹

Illustration:

‘A’ sues ‘B’ in a foreign court. The claim is dismissed. The decision will serve as a restriction on the same cause of action to a fresh claim by ‘A’ against ‘B’ in India.

JURISDICTION OF FOREIGN COURT

It is a well-settled proposition in private international law that unless a foreign court has jurisdiction in the international sense, a judgment delivered by that court would not be recognized or enforced in India. But the jurisdiction which is important in such matters is only the competence of the court, i.e. territorial competence over the subject-matter and the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the courts in this country.

The material date to decide the jurisdiction of the court is the time when the suit is instituted, stated in the case of Andhra Bank Ltd. v. R. Srinivasan.²

BINDING NATURE OF FOREIGN JUDGMENT

The Code of Civil Procedure specifies whether an international decision on every subject thereby specifically adjudicated by the same parties or between parties in which they or either of them appears to be litigating under the same title shall be binding, excluding-

1. where the court of appropriate jurisdiction has not pronounced the judgment;
2. If the merits of the argument have not been laid out
3. Where, in the light of the proceedings, it appears to be based on an incorrect view of international law or on a refusal to recognize the law of India in cases where that law is applicable;
4. Where the proceedings in which the judgment was obtained or in opposition to natural justice were brought;
5. Where fraud has been obtained;
6. Where the argument is based on a violation of any statute in effect in India.

FOREIGN JUDGMENT WHEN NOT BINDING

A foreign judgment is definitive according to Section 13 of the Code and will serve as a res judicata between the parties thereto agree in the cases listed therein. In other words, if one of the conditions stated in clauses (a) to (f) of section 13 is fulfilled then it would then be subject to collateral attack, an international decision is not definitive as to any matter specifically adjudicated upon.

Dicey very correctly states: “A foreign decision is final as to any subject adjudicated therein and cannot be reproached either for any mistake

• De facto; or
• By statute”

A foreign decision shall not be conclusive in the following six cases:

1. FOREIGN JUDGMENT NOT BY A COMPETENT COURT

It is a basic legal principle that the decision or order issued by the court is null and void and has no authority. A decision of a foreign court must then be a decision pronounced by a court with competent jurisdiction to be binding between the parties.³ Such a decision must be taken by a court of the competent authority, whether by the statute of the state that created it and in an international context, and it must have adjudicated specifically on the “matter” that is called res judicata. Yet what is definitive is the verdict, it is the ultimate decision and not the international court’s justification for the verdict.

The landmark decision regarding the issue in Faridkot’s Gurdayal Sigh v. Rajah.⁴ In this case, it was held that A complaint against B at Faridkot’s Native State court, alleging that Rs. 60,000 had been misappropriated by B while at Faridkot in A’s service. B did not testify at the hearing, so he was handed an ex parte order. B was originally from another Jhind Native Territory. He left Jhind in 1869 and went to Faridkot for service under A. Yet he left A’s service in 1874 and moved back to Jhind. In 1879 the current case was brought against him; although he neither lived at Faridkot nor was he living there. On such findings, the Faridkot court had no authority on general principles of International Law to entertain a complaint against B based on a pure personal argument against him. In these conditions, the decision issued by the Faridkot court was an absolute nullity. When A sued B in a British India court against B on the Faridkot court’s decision, the claim was dismissed on the basis that Faridkot court did not have jurisdiction to entertain the complaint. The simple evidence that the embezzlement took place at Faridkot was not enough to grant the Faridkot court jurisdiction should have had absolute jurisdiction to prosecute the complaint and issue a judgment against him.

• FOREIGN JUDGMENT NOT ON MERITS

To act as res judicata, there would have been a foreign decision on the merits of the case. A verdict is said to have been passed down on merits as the Judge concludes the matter one way or the other after collecting testimony and after focusing his mind on the validity or falsity of the complainant’s argument.

In the case of Keymer v. P. Visvanatham, ⁵ it was held that Where the case is rejected on account of the plaintiff’s error in appearance; or the plaintiff’s inability to deliver the petition just before the defendant’s written declaration was issued, or if the order was passed as a result of the defendant’s inability to provide protection or the denial of the defense’s leave, such decisions are not of fact.

• FOREIGN JUDGMENT AGAINST INTERNATIONAL OR INDIAN LAW

A decision founded on a mistaken understanding of foreign law or a failure to accept India’s rule where that rule is valid is not definitive. Yet on the face of the trial, the mistake needs to be obvious. Thus, if the English court wrongly interpreted English law in a case brought in England on the grounds of a contract made in India, the court’s decision is protected by that provision in as far as it is a fundamental principle of Private International Law that the obligations and liabilities of the parties to a contract are regulated by the location where the contract is concluded (lex loci contractus).

In Narasimha rao v. Venkata Lakshmi, ⁶ if a foreign decision is based on a jurisdiction or on a basis that is not recognized by Indian law or international law, it is a decision that defies the constitution. Hence, the matter adjudicated therein is not definitive and, thus, in this region, unenforceable.

• FOREIGN JUDGMENT OPPOSED TO NATURAL JUSTICE

It is the nature of a court’s decision that it must be rendered without proper observance of the legal procedure, i.e. the court delivering the decision shall conform with the required natural justice criteria- It must be comprised of neutral individuals, behave reasonably, without prejudice and in good faith; provide adequate notice to the parties to the dispute and allow each party ample opportunity to make its case. A verdict arising from a judge’s prejudice or lack of impartiality would be regarded as a nullity and the “corum non judice” trial.

Therefore a verdict issued to the complainant without warning of the litigation or without affording a fair chance to represent his case is counter to natural justice. Similarly, a decision against a party that is not adequately served in the trial or where the judge has been compromised is contrary to natural justice and thus does not act as res judicata.

• FOREIGN JUDGMENT OBTAINED BY FRAUD

This is a well-established norm in Private International Law not to act as res judicata if an international verdict is gained through fraud.

De Black, C.J. Clarify the essence of the fraud. He claimed that while a decision should be res judicata and not unjustifiable from within, it may be unjustifiable from outside. In other words, while showing that the court was “misleading” is not possible, it may be seen that it was “misleading.”

In Satya v. Teja Singh’s landmark case, ⁷ where a husband received a divorce order against his wife from an American Court that averred that he was domiciled in America. The Supreme Court held that the husband was not a bonafide citizen or domicile of America and had played fraud on a foreign court wrongly reporting it as an incorrect jurisdictional fact.

• FOREIGN JUDGMENT FOUNDED ON BREACH OF INDIAN LAW

Where a foreign decision is based on a violation of any rule that is in effect in India, it does not occur in India. Private International Law laws cannot be automatically and arbitrarily enforced. Any case that falls before an Indian court has to be determined according to Indian law. Whereas a foreign decision on a gaming debt or argument that is excluded in India under the Restriction Legislation is not definitive.

In Satya v. Teja Singh’s case, ⁸ it was held that implicitly, international legislation and global opinion should not threaten our national policy.

PRESUMPTION AS TO FOREIGN JUDGMENT

Section 14 of the Code of Civil Procedure states that, where any paper purporting to be a certified copy of a foreign judgment is made, the court shall conclude that such judgment has been rendered by a court of competent jurisdiction unless the contrary is recorded or confirmed. Nevertheless, if any additional requirement is needed for the admissibility of such a copy to be met, it will only be accepted in court if that condition is satisfied.

Hence the Supreme Court held in Narsimha Rao v. Venkata Lakshmi⁹ that pure creation of a Photostat copy of a foreign court judgment is not enough. A representative of the Central Government in America is required to approve it.

SUBMISSION TO JURISDICTION OF FOREIGN COURT

It is well-founded that one of the premises on which foreign courts are accepted as possessing legal competence is the voluntary consent of the party to such foreign court jurisdiction. The explanation for this theory is that it is not available to the claimant to turn round when the decision is against him and to argue that the court has no authority, having taken a risk of judgment in his favor by appealing to the court’s jurisdiction.

Submission to foreign court jurisdiction can be formal or implied. Whether or not the applicant has appealed to a foreign court’s jurisdiction is a matter of fact that must be determined in the light of the facts and circumstances of each case.

CONCLUSIVENESS OF FOREIGN JUDGMENT

A foreign verdict is binding and can act as a res judicata between the parties and private persons but not as strangers. It is known that it is possible to evaluate an international decision from the perspective of competence but not of errors. Subject to the exemption mentioned in clauses (a) to (f) of Section 13, the court cannot proceed into the validity of the initial argument and is definitive as to any matter so specifically adjudicated by the same parties.

ENFORCEMENT OF FOREIGN JUDGMENT

A foreign decision can be applied in India in the following cases, which is definitive under Section 13 of the Code:

1. SUIT ON FOREIGN JUDGMENT

A foreign judgment can be applied by filing a complaint against such a foreign judgment. The basic theory of law is that any ruling of a foreign judge, tribunal or quasi-judicial body in a country is not enforceable until such a ruling is reflected in the judgment of that country’s judiciary. In such a proceeding, the court cannot go through the validity of the original allegation, and any case specifically adjudicated by the same parties shall be definitive. Such a lawsuit must be filed within three years of the date of the judgment.

• EXECUTION PROCEEDINGS

In such specified cases listed in section 44-A of the Code, a foreign judgment can also be imposed by execution proceedings. The said provision specifies that if a certified copy of a decree has been issued in a District Court of any of the superior courts of any reciprocating jurisdiction, the decree can be enforced in India as if it had been approved by the District Court. Under Section 44-A the decree will only be enforced if all the conditions of Section 13(a) to (f) are fulfilled.

FOREIGN AWARD

In India, an award given by a foreign arbitrator and legally binding in a country in which it was made could be applied.

EXECUTION OF FOREIGN JUDGMENT

A foreign judgment that is conclusive and does not fall within the mischief of any of the clauses (a) to (f) of section 13 of the Code may be enforced by taking out execution proceedings in India.

Hence, it has been accomplished after the findings, that a foreign verdict on any issue explicitly adjudicated by it between the same parties will be definitive. We should also infer that a decision of a foreign court establishes estoppel or res judicata between the same parties, given that such decision is not subject to any of the clauses (a) to (f) of Section 13 of the Code of Civil Procedure. If any lawsuit is filed by any party and subsequently abandoned at the trial of a suit and if the decision in that suit means that the court’s assertion has not met with approval, then the court must be considered to have adjudicated immediately against it.

SOURCES

1. Satya v. Teja Singh, (1975) 1 SCC 120.
2. AIR 1962 SC 120.
3. R. Viswanathan v. Rukn-ul-Mulk Syed Abdul, AIR 1963.
4. (1893-94) 21 IA 171.
5. (1916-17) 44 IA 6.
6. (1991) 3 SCC 451.
7. (1975) 1 SCC 120.
8. (1975) 1 SCC 120.
9. (1991) 3 SCC 451.

REFFERED BOOKS

1. C. K. Takwani: Civil Procedure Code, 1908, (8th edition, reprint 2019), Eastern Book Company.
2. Dr. Avtar Singh: The Code of Civil Procedure (edition 5, 2019), Central Law Publications.

This blog is written by Akriti Sharma, Banasthali University

Some of her blogs-

• INTRODUCTION TO INDIAN EVIDENCE LAW
• INDIAN EVIDENCE AMENDMENT BILL, 2016
• BURDEN OF PROOF (Section 101-114)
• INHERENT POWERS OF THE COURT

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