Enforcing Foreign Judgments
in India
Article &
FAQ's on Enforcing Foreign Judgments in India
Can a Judgment Obtained from a Court in the United States
of America be Enforced Against a Party in India?
A foreign judgment can be enforced in
India in one of two ways:
1. Judgments from Courts in
"reciprocating territories" can be enforced directly by filing before an
Indian Court an Execution Decree.
A "reciprocating territory" is
defined in explanation 1 to Section 44A of India's Civil Procedure Code
as: "Any country or territory outside India which the Central Government
may, by notification in the Official Gazette, declare as a reciprocating
territory."
The United Kingdom and Canada are among the list of countries which has
been declared as "reciprocating territories."
Presently, the United States of America is not declared as a
"reciprocating territory" by the Government of India.
2. Judgments from "non-reciprocating territories," such as the
United States, can be enforced only by filing a law suit in an
Indian Court for a Judgment based on the foreign judgment. The
foreign judgment is considered evidentiary.
The time limit to file such a law suit in
India is within three years of the foreign judgment.
A foreign judgment is considered conclusive
by an Indian Court if such judgment:
-
has been pronounced by a court of
competent jurisdiction;
-
has been given on the merits of the
case;
-
is founded on correct view of
international law;
-
is contained in proceedings that
followed principles of natural justice;
-
has not been obtained by fraud; and
-
does not sustain a claim on a breach
of any law in force in India.
Indian courts are overburdened and
therefore slow. Enforcing a foreign judgment in India could take years
in some instances, depending upon the complexity of the issues involved
in the dispute between the parties.
Whether a Judgment / Decree on a Commercial Matter obtained in
the USA is enforceable in India?
Judgments from "non-reciprocating
territories," such as the United States, can be enforced only by filing
a law suit in an Indian Court for a Judgment based on the foreign
judgment. The foreign judgment is considered evidentiary.
The time limit to file such a law suit in
India is within three years of the foreign judgment.
A foreign judgment is considered conclusive
by an Indian Court if such judgment:
-
has been pronounced by a court of
competent jurisdiction;
-
has been given on the merits of the
case;
-
is founded on correct view of
international law;
-
is contained in proceedings that
followed principles of natural justice;
-
has not been obtained by fraud; and
-
does not sustain a claim on a breach
of any law in force in India.
The Indian law is complex in these kind of matters.
Therefore, please seek a proper legal advice regarding this
matter.
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further information
What law governs the enforcement of foreign judgments in
India?
The Indian Code of Civil Procedure, 1908 (CPC)
governs the execution of decrees, whether foreign or domestic,
in India.
There are two ways of getting a foreign judgment enforced.
Firstly by filing an Execution Petition under Section 44A of the
CPC (in case the conditions specified therein are fulfilled).
Secondly by filing a suit upon the foreign judgment/decree.
Under Section 44A of the CPC, a decree of any of
the Superior Courts of any reciprocating territory are
executable as a decree passed by the domestic Court. Therefore
in case the decree does not pertain to a reciprocating territory
or a superior Court of a reciprocating territory, as notified by
the Central Government in the Official Gazette, the decree is
not directly executable in India. In case the
decree pertains to a country which is not a reciprocating
territory then a fresh suit will have to be filed in India on
the basis of such a decree or judgment, which may be construed
as a cause of action for the said suit. In the fresh suit, the
said decree will be treated as another piece of evidence against
the defendant .
Under Section 13 of the Code of Civil Procedure,
a foreign judgment becomes inconclusive and consequently
unenforceable in the following circumstances:
-
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 an incorrect view of international law or a
refusal to recognize the law of India in cases in which such law
is applicable;
-
where the proceedings in which 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.
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further information
Whether a Divorce Decree obtained in the USA is enforceable in
India?
The Indian law is complex in these kind of matters.
Therefore, please seek proper legal advice regarding enforcing a
divorce degree given by a USA Court in India. As the the Supreme Court of India, in
the matter of Y. Narasimha Rao versus Y. Venkata Lakshmi (JT 1991 (3) SC 33), observed: “The rules of private international law in this country
(India) are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act, etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and
in-testate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well
recognized in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it…”
The Supreme Court of India has observed that Indian courts would not
recognize a foreign judgment if it had been obtained by fraud, which need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.
The court has also laid down broad principles to be followed by Indian courts
regarding foreign judgments in matrimonial matters..
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