Before we take the discussion forward, the first important question that would need to be addressed is:
Is that possible?
And the answer is Yes, it is possible, however, subject to certain conditions prescribed in law.
And one of those important conditions is:
A foreign court Judgment emanating from a reciprocating territory shall be executable in India.
(The list of the names of the countries that fall within the category of reciprocating territories will appear at the bottom of this Article).
Further, a Judgment / Decree emanating from a reciprocating territory if not satisfying the tests prescribed in Section 13 of the Code of Civil Procedure for it to be conclusive, shall not be enforceable in India.
Section 13 of the Code of Civil Procedure deals with the principle of Private International Law, which states that the Indian Courts will not enforce a foreign judgment when:
- where it has not been pronounced by a Court of competent jurisdiction;
- where it has not been given on the merits of the case;
- where it appears on the face of the proceedings to be founded on any incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
- where the proceedings in which the judgment was obtained are opposed to natural justice;
- where it has been obtained by fraud;
- where it sustains a claim founded on a breach of any law in force in India.
Therefore, the Judgment passed by a foreign court should be conclusive and should be passed on merits.
Following may be listed as Frequently Asked Questions that will go on to satisfy my readers’ anxiety in the concept to the maximum:
- Can a Judgment from a non-reciprocating territory be enforced in India?
Yes! A foreign Judgment/decree from a non- reciprocating territory also can be enforced, however, by initiation of a lawsuit under section 20 of the Code of Civil Procedure.
(Section 20 pertains to territorial jurisdiction of the Court, where the suit would be maintainable)
- Is it possible to enforce an ex-parte foreign court Judgment in India?
The answer is No.
In this context the Supreme Court in the case of International Woollen Mills v Standard Wool (UK) Ltd. (AIR 2001 SC 2134) has held that a decree, whether from reciprocating or non-reciprocating territory, that follows a Judgment that is not on merits on account of the defendants' failure to appear and without examination of any material or the evidence would not be enforceable in India.
- Whether the limitation of time is an issue for enforcing a foreign court Judgment in India?
Yes! Definitely, Law of Limitation does apply.
The Limitation Act prescribes a period of 12 years from the date of Judgment / decree when it becoms enforceable.
On the other hand, in the case of a foreign Court Judgment passed in non-reciprocating territories, the limitation period to institute a suit based on such foreign Judgment is three years from the date right to apply accrues.
- How to execute a foreign Court Judgment in India:
For decrees complying with the afore explained tests, it would be through initiating Execution Proceedings by filing an Execution Petition under the Code before a competent Court to be decided on the basis of Pecuniary and territorial jurisdiction.
- Is there an alternate and expeditious remedy for enforcing a Judgment from a non-reciprocating territory?
Yes! Another strategic remedy for enforcing a Judgment from a non-reciprocating territory assuming that it does pass the tests set down in the Code, execution in India could be expedited by using the route of insolvency proceedings against the defaulting Indian party under the Insolvency and Bankruptcy Code.
- Is it possible to enforce a Judgment in India if it is an Award of an Arbitrator? And how?
YES! if the judgment is an award of the arbitrator, it will be enforceable in India only if it is from a country notified as convention country by India.
India is a signatory to the Geneva Convention on the Execution of Foreign Arbitral Awards, 1927 (“Geneva Convention”) as well as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“New York Convention”).
Thus, if a party receives a binding award from a country which is a signatory to the Geneva Convention or the New York Convention and the award is made in a territory which has been notified as a convention country by India, the award would then be enforceable in India.
List of Reciprocating territories:
- United Kingdom,
- Republic of Singapore,
- Federation of Malaya,
- Trinidad and Tobago,
- New Zealand,
- The Cook Island (Including Niue) and the trust territory of Western Samoa,
- Hong Kong,
- Papua and New Guinea,
Countries notified as convention country by India for the enforcement of an arbitral award are:
- Central African Republic;
- China (including Hong Kong and Macau)
- Czechoslovak Socialist Republic;
- Federal Republic of Germany;
- Malagasy Republic;
- Republic of Korea;
- San Marino;
- Syrian Arab Republic;
- The Arab Republic of Egypt;
- The Netherlands;
- Trinidad and Tobago;
- United Kingdom;
- United Republic of Tanzania; and
- United States of America.
- In addition to above, India has recently entered into an agreement with the United Arab Emirates for Juridical and Judicial cooperation.
For any clarifications, please email:
Mr. Rakesh Taneja
Advocate, Supreme Court of India