Executability & Enforceability of Foreign Judgments and Decrees in India

The word foreign decree or order simply connotes a final adjudication on a point of law by a court situated outside the territory of India or simply not coming under the authority of the central legislature. The executability of foreign judgements in India is governed by The Code of Civil Procedure 1908 (CPC). Various sections under the code govern the executability of the foreign judgements such as Section 13, Section 38, Section 39, Section 40, Section 44-A and Section 45.

For the purpose of enforcement, foreign decrees have been classified into two classes: one from the reciprocating countries and the other from the non-reciprocating countries. According to Section 44A of CPC a decree from a reciprocating country is directly enforceable in India as if it has been passed by the domestic country itself if the conditions laid down under Section 13 are satisfied.

 Further a foreign decree of a non-reciprocating country can be executed by institution of a suit in the domestic courts. In the newly instituted suit the decree of the foreign court will be treated as another piece of evidence collectively with other evidence.

 The list of reciprocating countries have been notified in the official gazette by the central government. However in both the abovementioned cases the decree has to pass the test laid down under Section 13 of CPC.

Thus the whole situation boils down to determining whether or not the foreign decree satisfies the conditions laid down under Section 13 of CPC.

According to Section 13 a foreign decree becomes inconclusive if:

  • It has not been pronounced by a court of competent jurisdiction.
  • It has not been given on the merits of the case;
  • it sustains a claim founded on a breach of any law in force in India.
  • it has been obtained by fraud.
  • the proceedings in which judgment was obtained are opposed to natural justice
  • 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.

 This article would discuss in detail these conditions along with decided cases of the Supreme Court and various high courts.

Firstly, coming to Section 13(a) under which it is laid down that if a decision of a foreign court is not pronounced  by a court of competent jurisdiction it would not be enforceable. In the case of Moloji Nar Singh Rao v. Shankar Saran[1]the issue was, whether a foreign decree which was given ex parte can be executed in India. The Supreme Court pronounced that the decree cannot be executed in India due to the following reasons:

  • The respondents were not subjects of the foreign country.
  • They did not voluntarily appear in the court.
  • They did not contract to submit to the jurisdiction of the foreign court.
  • They were not the residents of that foreign country.
  • They were not temporarily present in that State when the process was served on them.

In another leading case R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar[2]the respondent alleged that since he was neither the resident of that foreign country nor had he submitted to the jurisdiction of the foreign court the decree should not be executed in India. The plaintiff claimed that the respondent was a partner in a firm which was located in the foreign country and thus the foreign court had the jurisdiction to try the case. The court held that it was the firm which had accepted the jurisdiction of the foreign Court, and the Respondent in an individual capacity, had not accepted the jurisdiction and thus the decree could notbe executed in India.

Further the Madras High Court in the case Ramanathan Chettiar v. Kalimuthu Pillai[3] had laid down certain circumstances wherein a foreign judgement could be applicable in India:

  • When judgements have been obtained against the concerned person on prior occasions in the foreign country.
  • When he is the resident of the foreign country in which the action had commenced.
  • Where the party voluntarily appears on being summoned
  • Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.

Thus these are basically the conditions which need to be satisfied fora foreign judgement to be executed in India.

Secondly, according to Section 13(b) of CPC if a foreign judgement is not given on the merits of the case then it cannot be executed in India. The fountainhead of all decisions under this head has been the decision of the Privy Council in the case of D.T. Keymer v. P. Viswanatham[4]. In this case a suit for money was brought against a partner of a firm in a foreign court. After this the defendants was asked to answer certain interrogatory questions. When he denied to answer these questions his defence was struck off and judgment was entered for the plaintiff without investigating into the claims of the plaintiff. The domestic courts in India held that the decree cannot be enforced in India as the foreign judgement had not been passed on the merits of the case.

Primarily courts in India take a very stringent view while enforcing ex- parte foreign judgements in India. However sometimes ex- parte judgements that have been passed on the merits of the case and concluded after engaging in proper investigation of the claims, have been enforced by the Indian courts.

For example in the case of Ephrayim H. Ephrayim v. Turner Morrison & Co.[5], it was held that where no defence is raised and only an adjournment is sought, and the request for adjournment is refused and the judgment is proceeded on the evidence of the Plaintiff, it cannot be said that the judgment is not on the merits of the claim. Therefore S. 13(b) of CPC will not be able to come to the rescue of the defendant.

Third, coming to Section 13(c) of CPC which states that if a foreign judgement is passed disregarding the Indian or International law then it cannot be executed in India. Avery interesting case in this regard is Anoop Beniwal v. Jagbir Singh Beniwal[6]. In this case the plaintiff had filed a suit for divorce in England on the basis of the English Act, that is the Matrimonial Causes Act, 1973. The petitioner’s complaint was that the behaviour of the respondent made it reasonably difficult for the former to cohabit with the latter- In India a slightly stricter ground than the one that was provided in the foreign judgment, was stated. The court held that the decision of the foreign court was not in contravention to the Indian law and thus enforced the decree.

Thus Section 13(c) primarily says that:

  • A judgment or decree passed by a foreign Court upon a claim for immovable property which is situated in the Indian territory may not be enforceable since it offends International Law.
  • A judgment/decree cannot be enforced in India, if a foreign judgement was rejected on consideration by a previous Indian court. However if the proper law of contract is the foreign law then this may not be applicable.

Further, according to Section 13(d) if the proceedings in the foreign court were opposed to the principles of natural justice then the foreign judgement cannot be executed in India. In the case of Hari Singh v. Muhammad Said[7]a foreign court failed to appoint a court guardian of a minor defendant and thus the domestic court did not execute the judgement saying that what the foreign court did was opposed to the principles of natural justice.

In addition, according to Section 13(e) if a foreign judgement is passed by a court due to the fraud played on it by the plaintiff then the judgement cannot be enforced in India.

In the case of Satya v. Teja Singh[8]the Supreme Court held that since the plaintiff had misled the foreign court about its non-existing-jurisdiction over the matter,-, the judgment and decree would be deemed to have been obtained by -fraud and therefore would be presumed to be inconclusive and could not be applied in India.

 Thus it can be concluded that a judgment passed in the courts of a reciprocating country could not be enforced in India if it failed to satisfy the rules laid down under Section 13 of CPC. It can be seen that, the plaintiff has to come before the Indian courts to either get the foreign judgment executed under S. 44A or file a fresh suit for the enforcement of the judgement. Therefore by getting a decree in the foreign Court, the plaintiff only avoids the inconvenience of meeting the requirements under the law of evidence applied by the Indian Courts. But when he does not institute the case in India he runs the bigger risk of dealing with the difficulties of getting the foreign judgment executed in India under the stringent conditions of S. 13. Therefore it may be advisable for a foreign plaintiff to institute claims in India itself, in case the defendant is in India.

Photo Courtesy: https://www.google.co.in/search?q=foreign+judgments+enforce+india&biw=1366&bih=623&tbm=isch&source=lnms&sa=X&ved=0CAgQ_AUoA2oVChMIx9Kb4q2cxwIVzluOCh1MjA7T#tbm=isch&tbs=rimg%3ACXCYOK9_1Rdm1Ijj6IP4BB9AXGwdBffTeM3WItO-Q3j0cHcQZ6GlVly4fW03JiDnYhWWBO51Wf2kPyiGBJmgLgHyrsyoSCfog_1gEH0BcbEQ4UlB8Xx3onKhIJB0F99N4zdYgRRh-WNUZyKTQqEgm075DePRwdxBG22SOwxInYCCoSCRnoaVWXLh9bEdxX4o9peRRYKhIJTcmIOdiFZYERg94ZK_1zc8XYqEgk7nVZ_1aQ_1KIREC0QBoe2XX1yoSCYEmaAuAfKuzEQoBcyywZWZj&q=foreign%20judgments%20&imgrc=TcmIOdiFZYF59M%3A

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[1] AIR 1962 SC 1737. It is a constitutional bench consisting of 5 judges.

[2]AIR 1973 Mad . 141.

[3]; Cf. Ibid. at p. 143 para 16. Also see Chormal Balchand Firm Chowrahat v. Kasturi Chand

[4]AIR 1916 PC 121.

[5]AIR 1930 Bom. 511 at 515

[6]AIR 1990 Del. At 311.

[7]AIR 1927 Lah. 200.

[8]AIR 1975 SC 105 at p. 117 para 50.

Mobile Applications and the Right to Privacy

With the release of the first ever Smartphone in 1992[1] (the IBM ‘Simon’) to the launch of the iPhone in 2007 and that of the first ever android Smartphone in 2008[2] (the HTC ‘Dream’), smart phones have rapidly emerged to become our preferred method of communication. The advent of Smartphone technology gave rise to what essentially made the Smartphone ‘smart’- the mobile applications, or apps as they are referred to now. There are hundreds of thousands of different applications available from a range of app stores for each popular smart device type. The era is long gone when mobile devices were just a means of voice communications. Mobile applications now provide an array of services from social networking, shopping, banking, ticketing to corporate applications such as email, calendar and address book applications – there seems to be an app for almost everything. The Apple iPhone and iPad, as well as all subsequent Smart phones and smart tablets, owe their popularity and most of their functionality to their ability to run mobile applications.

It has been reported that more than 1,600 new apps are added to app stores daily.[3] An average smart phone user downloads 37 apps[4]. These mobile applications thus are being released in a flurry. In the times of Facebook, Viber and Whatsapp, privacy aspect has been left redundant. These mobile applications have gone from being a means of connectivity to a means of inconvenience and imposition of surveillance. As these applications are easier to download and more consumers purchase Smart phones and tablets, a very real privacy concern emerges.

There’s a plethora of security and privacy risks regarding them as these apps store and transmit a lot of private and sensitive information about their users without the user’s knowledge or consent. Information includes location, contacts, photos and corporate information, such as login credentials, private contact details, credit card details, invoices and purchase orders and other private information that the consumer does not consciously share. Even when mobile applications obtain a user’s consent to collect private data, other issues remain. For instance, consent is usually obtained in such a manner that even subsequent to consenting; the user stays ignorant in the matter of what particular data he or she has released.

Recent research showed that many apps abundantly collect data from smart phones, without any meaningful relationship to the apparent functionality of the app[5]. For over a week, Facebook has been pushing users to download the new standalone Messenger app in light of the fact that it is disposing off the feature in its regular application. Some users were notified that their in-app message function was disabled, and they needed to download the new app if they wanted to use the private chat service. But Messenger’s user agreement terms for Android-run devices were seen by many as increasingly invasive and yet another way Facebook was making privacy rights immaterial and irrelevant.

Some of the questionable terms incorporated permitting the app to make calls without the user’s knowledge, record audio, take pictures and feature any time. The app also reserves the right to scroll through users’ contacts and call logs, and in addition gather personal information stored on the mobile devices including data stored in other apps. Backlash against the app’s terms is just the latest privacy controversy Facebook has had to manage.

The social network admitted in June that it performed psychological experiments on users by manipulating their timelines. News of the experiments, which tried to alter users’ moods based on what they read, incited public furor over the company’s continuous push of privacy boundaries[6]. Moreover, Facebook and other tech companies have been under pressure to tighten their privacy policies domestically and abroad in the wake of former U.S. National Security Agency contractor Edward Snowden’s document leaks in 2013.

Facebook is currently tussling with European lawmakers, and awaiting a European Union court to rule whether the company broke privacy laws when it gave the NSA access to German citizens’ profiles. Adding fuel to fire of privacy concerns, the cloud system of data storage went kaput a few months back, wherein hackers leaked private risqué photos shared or stored via such mobile applications. Even more on the flipside, there has been an increase in stalking and numerous instances of bullying be it the young or old. These mobile applications encroach upon the private spheres in the most disastrous ways possible.

Research shows mobile apps are growing at a rate of 29.8% each year, and that the 1.2 billion mobile users currently using apps will climb to 4.4 billion by the year 2017[7]. Applications for mobiles are being developed at a tremendous rate but often without proper security implementation. These applications can cause serious information security and data privacy issues and can have severe repercussions on users and organizations alike. Therefore, all applications must undergo a thorough security assessment before being released into production to confirm that all the privacy and security issues have been addressed[8].

The legal right to privacy is constitutionally protected in most democratic societies. This constitutional right is expressed in a variety of legislative forms. Examples include the Privacy Act (1974) in the USA, the proposed Open Democracy Act in South Africa (1996) and the Data Protection Act in England. During 1994 Australia also accepted a Privacy Charter containing 18 privacy principles which describe the right of a citizen concerning personal privacy as affected by handling of information by the state. The Organization for Economic and Coordination and Development (OECD) also accepted in 1980 the Guidelines for the Protection of Privacy and Trans border Flow of Personal Data[9].

India has no dedicated privacy and data protection laws, which makes us vulnerable to violations of privacy by mobile apps. Courts have read the right to privacy into the other existing fundamental rights, namely the right to freedom of speech and expression under Article 19(1) (a) and right to life and personal liberty under Article 21 of the Constitution of India. However, these Fundamental Rights under the Constitution of India are subject to reasonable restrictions given under Article 19(2) of the Constitution that may be imposed by the State. However, the relevant laws in India dealing with data protection are the Information Technology Act, 2000 and the (Indian) Contract Act, 1872. India is also weak at protecting civil liberties in cyberspace. The right to privacy is a right that the Indian government can no longer ignore, especially with the growing use of apps in everyday life. One can only hope that an effective law regarding protection of privacy comes out in the near future, to avoid infringement of our privacy.

Photo Courtesy: https://www.google.co.in/search?q=Mobile+applications+privacy&biw=1366&bih=667&source=lnms&tbm=isch&sa=X&ved=0CAcQ_AUoAmoVChMI6N3rtKWcxwIVz1uOCh1smwiQ#imgrc=QPsy71t20Hf4FM%3A

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[1] http://time.com/3137005/first-smartphone-ibm-simon/

[2] http://news.softpedia.com/news/Remember-The-First-Android-Smartphone-Was-the-HTC-Dream-or-Google-G1-472839.shtml

[3] Report in ConceivablyTech of 19 August 2012, available at www.conceivablytechcom/10283/business/apple-app store-to-reach-1mapps-this-year-sort-of. Quoted by Kamala D. Harris, Attorney General California Department of Justice, Privacy on the go, Recommendations for the mobile ecosystem, January 2013, http://oag.ca.gov/sites/all/files/pdfs/privacy/privacy_on_the_go.pdf

[4] This is a worldwide estimate for 2012 by ABI Research, http://www.abiresearch.com/press/smartphone-users worldwide-will-download-37-apps-o

[5] Wall Street Journal, Your Apps Are Watching You, http://online.wsj.com/article/SB10001424052748704694004576020083703574602.html

[6] http://thinkprogress.org/culture/2014/08/10/3469599/facebook-messenger-app-privacy/

[7] Ajay Sharma, ”Can you feel me now”-The new age of mobile apps, available at http://www.charterglobal.com/can-you-feel-me-now-the-new-age-of-mobile-apps/

[8] J. Burns, “Developing Secure Mobile Applications for Android,” iSEC, Oct. 2008; www.isecpartners.com/files/iSEC_Securing_Android_Apps.pdf.

[9] Collier, G. (1994). Information privacy. Just how private are the details of individuals in a company’s database? Information Management and Computer Security, 3 (1): 41-45.