India: Enforcement of Judgments in Civil and Commercial Matters

This country-specific Q&A provides an overview of Enforcement of Judgments in Civil and Commercial Matters laws and regulations applicable in India.

1. What international conventions, treaties or other arrangements apply to the enforcement of foreign judgments in your jurisdiction and in what circumstances do they apply

   India is not a party to any international convention on the enforcement of judgments. However, India has executed bilateral treaties with various countries regarding reciprocity in the enforcement of judgments and decrees. The United Kingdom, Aden, Fiji, the Republic of Singapore, the Federation of Malaya, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue) and the Trust Territories of Western Samoa, Hong Kong, Papua and New Guinea, Bangladesh and the United Arab Emirates are declared as ‘reciprocating territories’. In Moloji Nar Singh Rao vs Shankar Saran (AIR 1962 SC 1737), the Supreme Court of India held that a foreign judgment that does not arise from the order of a superior court of a reciprocating territory cannot be executed in India and a fresh suit will have to be instituted in India on the basis of the foreign judgement.

   When it comes to enforcement, a foreign judgment must be final and not fall within the ambit of some special cases specified in Section 13 of the Code of Civil Procedure, 1908 (CPC). Indian law doesn’t stipulate the kinds of judgments that may be implemented. Instead, Section 13 of CPC excludes those foreign judgments that fall within any of the clauses (a) to (f) of Section 13 as set out below:

   According to Section 13 of CPC, a foreign judgment shall be definitive about any issue effectively decided between the same parties or between any parties under whom they, or any of them, claim to be pursuing the litigation under the same title, other than:

   1. where it has not been pronounced by a court of competent jurisdiction;
   2. where it has not been given on the merits of the case;
   3. where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
   4. where the proceedings in which the judgment was obtained are opposed to natural justice;
   5. where it has been obtained by fraud; and
   6. where it sustains a claim founded on a breach of any law in force in India.’

   The international judgment must be completely definitive in all its adjudicative parts. The party seeking compliance must ensure that the foreign judgment or decree does not fall under the exceptions referred to above before seeking to impose a foreign judgment or decree. If any of these exceptions are protected by a foreign judgment or order, they will not be considered conclusive and will, therefore, not be enforceable in India.

   Indian courts have accepted injunctive decisions on charges, authority, divorce decrees, financial judgments, compulsory enforcement actions, and anti-suit enforcement actions as enforceable. Courts have also held that even ex-parte judgments are binding if the complete existing legal processes are implemented and the decision is based on the merits of the case. Default decisions, overview or specific procedure orders, statutory decisions, and judgments authorising compensatory damages and fines or quasi-judicial orders, on the other hand, have been found unenforceable in India.

   There is no enforceability of a foreign judgment if it is open to challenge in a foreign jurisdiction. To be deemed enforceable, an international decision must be conclusive. The decision will not be considered definitive and binding for compliance in India if an appeal against it is pending in an international court of appeal.

2. What, if any, reservations has your jurisdiction made to such treaties?

   As mentioned above, the foreign judgment should be final and not fall within the ambit of some special cases specified in Section 13 of the CPC. In case of foreign judgments emanating from reciprocating territories, those can be enforced under Section 44A of CPC without any reservations other than those that are already provided in the said provision. Under Section 44A, a foreign judgment can be enforced merely by the production of a certified copy of the judgement of the superior court of the reciprocating territory, along with a certificate from such superior court stating the extent, if any, to which the judgment has been satisfied or adjusted.

   This has been recently confirmed in a decision of the Hon’ble High Court of Delhi in Peter Beck und Partner Vermogensverwaltung GmbH vs. Prakash Industries Limited & Ors. [2023/DHC/002986], in which a foreign judgment was enforced once a certified copy of the foreign judgment along with the certificate stating the extent of satisfaction of the judgment was filed. In that case, the respondents raised a plea that the court enforcing a foreign decree from a reciprocating territory must be a court that could otherwise have been competent to pass a decree in the first instance. However, this plea was rejected by the Court, and it was held that no extra reservations preclude enforcement of foreign judgements from reciprocating territories once requirements of Section 44A of CPC are fulfilled.

   To Read More, Visit the Full Chapter First Published by: Legal500 here

   Authors: Manisha Singh and Swati Mittal