Please find the second part of this article here
The Ministry of Law and Justice, Government of India, notified United Arab Emirates ('UAE') as a 'Reciprocating Territory' under Section 44A of the Code of Civil Procedure, 1908 ('CPC'), enabling execution/enforcement of a UAE judgment or a Decree in India.. The Notification dated 17.01.2020 ('Notification') issued by the Government has recognised certain federal and local courts of UAE as 'superior courts' for the purposes of Section 44A and the decree passed by such courts may now be directly executed in India.
UAE and India have been sharing good trade relations for a very long time. India is the third-largest investor in UAE 1 and UAE is the 9th biggest investor in India in terms of Foreign Direct Investment.2 In such a scenario, commercial disputes are often inevitable amongst the business parties involved in the overseas trade between India and UAE. To honour this flourishing business relation and for judicial cooperation in civil and commercial matters between the countries, on October 1999, India and UAE entered into an Agreement called 'Agreement on Juridical and Judicial Cooperation in Civil and Commercial Matters for the Service of Summons, Judicial Documents, Commissions, Execution of Judgements and Arbitral Awards' ('Agreement')3.
Although the Agreement was to provide mutual legal assistance, interalia, for execution of decrees, settlements and arbitral awards, the Government of India had not recognized UAE as a 'reciprocating territory' for the purpose of Section 44A of CPC- which is the governing law in India with regard to recognition and enforcement of decrees passed by foreign courts, provides that any such Decree passed by a foreign court may be executed in India, as if it has been passed by Indian courts; provided, the Central Government of India notifies such country as a 'reciprocating territory'. Thus, despite the aforesaid Agreement, decree passed by the UAE Courts were not executable in India for not being from a reciprocating territory.
EXECUTION OF DECREES PASSED BY UAE COURTS
Prior to the Notification, in order to enforce a Decree passed by the UAE Courts, the Decree-Holder was required to file a fresh suit on the basis of the Decree (passed by the UAE court) before the Indian court of competent jurisdiction. The fresh suit could be based on the Foreign Decree or the original cause of action, or both.
However, by notifying UAE as a 'Reciprocating Territory' and by defining which courts of UAE shall be treated as 'superior courts' for the purpose of Section 44A of the CPC, a Decree Holder can straightway apply for execution of said Decree before the Indian courts.
Following courts have been declared as 'superior courts' by the Notification –
- Federal Court-
- Federal Supreme Court;
- Federal, First Instance and Appeals Courts in the Emirates of Abu Dhabi, Sharjah, Ajman, Umm Al Quwain and Fujairah;
- Local Courts-
- Abu Dhabi Judicial Department;
- Dubai Courts;
- Ras Al Khaimah Judicial Department;
- Courts of Abu Dhabi Global Markets;
- Courts of Dubai International Financial Centre.
With this Notification, now any Decree passed by the 'superior courts' (mentioned above) of UAE are executable in India as if the Decree was pronounced by an Indian court of competent jurisdiction and the Decree Holder will not be required to institute a fresh suit in India for the same relief, as was the case in the Pre-Notification era. Nevertheless, the Decree Holder is required to file an Application for execution of the Decree in a court within the local limits of which the Judgment Debtor voluntarily resides, or carries on a business, or personally work for gain, or where its properties are situated. Along with the execution application, a Decree Holder is required to file a certified copy of the Decree passed by the 'superior courts' of UAE and a 'Certificate' from such superior court stating the extent, if any, to which the Decree has been satisfied or adjusted.
GROUNDS ON WHICH EXECUTION OF A DECREE CAN BE RESISTED
For direct execution of the Decree passed by a 'superior court' of a 'reciprocating territory', the Decree has to be conclusive in its nature. Section 13 of CPC lays down certain tests of conclusiveness. Thus, the Judgment Debtor may resist execution of the Decree by invoking the tests laid down in Section 13 of the CPC. Following are the test enumerated under Section 13, which a Foreign Decree must satisfy in order to be executable in India: –
(a) Must be passed by a court of competent jurisdiction:
It is trite law that a judgment or Decree passed by any court, which has no jurisdiction, is null and void. Thus, for a Decree to be conclusive, it has to be passed by a court of competent jurisdiction. The foreign court passing a Decree has to be a Court of competent jurisdiction according to the local laws of that foreign country and principles of private international law. In the landmark judgment of Gurdyal Singh v. Raja of Faridkot4 the Privy Council under the old Code of Civil Procedure of 1877, held that, the question whether a Court is a Court of competent jurisdiction should be determined, not by the rules laid down, in respect of jurisdiction for domestic tribunals, but by principles of private international law.
Similarly, the Delhi High Court in the matter of Bharat Nidhi Ltd. v. Megh Raj Mahajan5, did not enforce the Decree passed by a Court in Pakistan for want of competent jurisdiction. The Court held that "from the evidence, it must be held that the defendant was neither a national, nor domicile, nor a citizen, nor a resident of Pakistan either on the date of the commencement of the suit or on the date of the decree. He did not submit to the jurisdiction of the Pakistan Courts and he was not served while present in Pakistan. In these circumstances, the decree must be held to be a nullity and not enforceable in India under Section 13 of the Civil Procedure Code."
Here, it's relevant to stress that, what becomes conclusive is the Decree passed by the foreign court of competent jurisdiction and not the reasons for which the Decree has been passed by the foreign court.
(b) Must be a decision on merits:
In order for a Decree passed by 'superior court' of UAE to become conclusive and executable before Indian Courts, the UAE Court (which passed the decree) must have adjudicated the matter on merits. For a decree or judgment to be an adjudication upon the merits of the case, the Court must have applied its judicial mind to that matter and must have considered the evidence made available to it. The Court deciding the matter after giving an opportunity to the parties and after considering the rival submissions, gives its decision in the form of an order or judgment, to be a judgment on merits of the case in the context of the interpretation of Section 13(c) of the CPC.
In the matter of International Woollen Mills v. Standard Wool (U.K.) Ltd.6, the Supreme Court of India held that burden of proving that the decree was not on the merits is on the Judgment Debtor, the court also held that if the decree is not on merits, executing court will have to refuse the execution even though this leaves the decree holder remediless. The Court also relied upon Abdul Rehman v. Md. Ali Rowther7, wherein it was held that "a decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff's case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex-parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits."
The Patna High Court in Wazir Sahu v. Munshi Das8 held that merely because the decree is ex-parte same will not ipso facto become a decision not on merits. The court observed that "an ex-parte decision may or may not be on the merits. The mere fact of its being ex-parte will not in itself justify a finding that the decision was not on the merits. That is not the real test. The real test is not whether the decision was or was not ex-parte, but whether it was merely formally passed as a matter of course or by way of penalty or it was based on the consideration of the truth or otherwise of the plaintiff's claim."
(c) Must be in accordance with principles of international law:
A judgment or a Decree passed by a foreign court is not conclusive in India if such judgment is passed upon an incorrect interpretation of International Law or the foreign court refuses to recognize the law of India where such law is applicable. This mistake must however be apparent on the face of it. In the case of Indian & General Investment Trust v. Raja of Khalikote9, the Court held that from a point of view of Private International Law principles, the English court did not have the jurisdiction in person against the defendant/ judgment debtor and thus refused execution of Decree passed against it..
(d) Must not be in violation principles of natural justice:
A judgement or a Decree passed by a foreign court cannot be enforced in the courts of India, if it is passed in violation of the principles of natural justice. This procedural irregularity makes the judgment passed by the foreign court inconclusive and hence unenforceable in India.
A judgment or Decree passed by any Court without issuing notice to the defendant or without affording a reasonable opportunity of representing its case is against the principles of natural justice and thus will be hit by clause (d) of Section 13 of the CPC. A proceeding will not be in violation of natural justice if a party does not make proper use of the opportunity offered to it. However, an illegal or a wrong judgment has to be distinguished from a judgment which has been passed in violation of principles of natural justice. In the case of R.S. Rama Shenoi and Anr v. M.A. Hallagna And Anr10, it was held that the mere fact that a foreign judgment is wrong in law does not make it one opposed to the principles of natural justice. There must be something in the procedure anterior to the judgment which is repugnant to the principle of natural justice.
(e) Must not be obtained by fraud:
If a judgment or a Decree passed by a foreign court is obtained by fraud, it will not be considered as conclusive and thus cannot be enforced in India.
In the landmark judgment of Satya v. Teja Singh11, where a husband obtained a Decree of divorce from a Nevada court by misrepresenting that he was domiciled in the State of Nevada, USA. The Supreme Court of India held that a Foreign Decree may be assailed on the ground of fraud with respect to the jurisdiction of the court which passed the Decree. The Supreme Court of India thus declined to recognise the said Decree.
In another case of Y. Narasimha Rao v. Y. Venkata Lakshmi 12, Supreme Court of India refused to recognise Decree of divorce obtained by the husband holding that he played fraud on the foreign court by representing to it incorrect facts with respect to the jurisdiction.
(f) Must not be in breach of any Indian Law:
If a judgment or a Decree passed by a foreign court is found to be in contravention of any law in force in India, it will be declared as inconclusive under Section 13(f) of the CPC. The reasoning behind this clause seems to be that any judgment or decree which is sought to be enforce in India must not offend law of the land. Thus, any Decree which if enforced in India would result in violation of an Indian law shall be denied to be executed.
The execution of a Foreign Decree may thus be resisted by the Judgment Debtor on the above grounds. Needless to emphasise that the burden of proving existence of above grounds will be on the Judgment Debtor himself.
Presumption of foreign decree
Section 14 of the CPC provides for presumption as to foreign judgments. The Section states 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; but such presumption may be displaced by proving want of jurisdiction. This presumption is specifically important in view of Section 13(a) of the CPC which requires that for a Foreign Decree to be conclusive same must be passed by a court of competent jurisdiction. By virtue of Section 14 of the CPC presumption is that the Foreign Decree was passed by a competent court and burden to prove the contrary is on the Judgment Debtor.
What is the Period of Limitation to get a Foreign Decree Executed?
Recently, the Supreme Court of India in Bank of Baroda v. Kotak Mahindra Bank13, held that Article 136 of the Indian Limitation Act, 1963 ('Limitation Act'), which prescribes limitation of 12 years for execution of Decree, will apply only to Decree passed by Indian courts. Although the Court gave a finding that the limitation period for executing a decree passed by a foreign court (from reciprocating country) in India will be the limitation prescribed in the reciprocating foreign country (cause country), however, the Court also ruled that Article 137 of the Limitation Act, which provides for limitation of 3 years, would apply. The reasoning behind this is that the executing Court cannot execute a Foreign Decree (passed by superior courts of a reciprocation territory) unless the Decree Holder provides certain information of the Judgment Debtor like its address, properties, etc. This information will have to be provided by way of a written Application under Order 21 Rule 11 Clause 2 of the CPC. It has been observed that limitation for filing such an Application would be governed by Article 137 of the Indian Limitation Act, 1963, which provides for limitation of 3 years. Thus, by this reasoning limitation for filing execution application of Foreign Decree (passed by superior courts of a reciprocation territory) would be 3 years. It has been further held that in case period of limitation in the cause country (country which passed the foreign decree) is higher than period provided in India (3 years in this case) then such higher period will apply for the purpose of execution in India, thereby giving due recognition to the limitation period of the cause country.
On the question as to when the period of limitation starts to run, it has been held that the period of limitation would start when the Foreign Decree has been passed. However, if the Decree Holder initiates execution proceeding in the cause country and the Decree is not fully satisfied, then the right to apply accrues when the (un-satisfied) execution proceedings in the cause country comes to an end.
Dispute resolution and its implementation plays an important role in building economic relationships. This Notification was a much-awaited step taken by the Government of India, as it would further strengthen the economic relations between the countries. The transition in the status of UAE from a non-reciprocating territory to a 'reciprocating territory' under Indian law will play an important role in the execution of the UAE decrees in India. Now, the Decree passed by the UAE 'superior court' can directly be enforceable in India. The Notification has paved a causeway to an easier, quicker, cheaper and more effective execution of judgments or Decree passed by a UAE 'superior courts' before Indian courts.
It may be noted that the decrees to which this Notification shall apply are any Decree or judgment of such court under which a sum of money is payable, not being a sum payable in respect of taxes or in respect of a fine or other penalty. This Notification shall also not be applicable to an arbitral award, even if such an award is enforceable as a Decree or judgment.14
[Steps involved in execution of Foreign Decree of a 'reciprocating territory', in India, shall be dealt in detail by the Firm in the next part of this series.]
3. Available at - http://legalaffairs.gov.in/sites/default/files/mlat.PDF
4.  AC 670
5. AIR 1967 Del 22
6. (2001) 5 SCC 265
7. AIR 1928 Rang 319 (J)
8. AIR 1941 Pat 109
9. AIR 1952 Cal 508
10. 1917 SCC OnLine Mad 248; (1918) 34 MLJ 295
11. (1975) 1 SCC 120
12. (1991) 3 SCC 451
13. 2020 SCC OnLine SC 324
14. Explanation 2 of Section 44A of CPC
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.